Housley v. State

• Decision Date: 05 April 1920
• Docket Number: 319
• Citation: 220 S.W. 40,143 Ark. 315
• Parties: HOUSLEY v. STATE
• Court: Arkansas Supreme Court

220 S.W. 40

143 Ark. 315

HOUSLEY v. STATE

No. 319

Supreme Court of Arkansas

April 5, 1920

Appeal from Garland Circuit Court; Scott Wood, Judge; reversed.

Judgment reversed and cause remanded.

Arthur Cobb and Berry H. Randolph, for appellant.

1. The evidence of conversations had with Porter Brown in the absence of appellant prior to the burning of the houses was inadmissible and it was error to admit them. It was mere hearsay and not competent. 95 Ark. 460; 87 Id. 34.

2. Conversations with Porter Brown after the fire in the absence of appellant were also incompetent, and it was error to admit testimony as to them. 78 Ark. 290; 45 Id. 155, 328; 62 Id. 516; 59 Id. 422; 45 Id 132.

3. The evidence is not sufficient to sustain the verdict after the incompetent evidence is eliminated.

John D Arbuckle, Attorney General, and J. B. Webster, Assistant, for appellee.

1. A conspiracy was shown to exist and there was no error in admitting testimony as to conversations with Porter Brown before or after the fire and the court so instructed the jury. 79 Ark. 603; 96 Id. 632; 81 Id. 179; 77 Id. 449-450; 98 Id. 581; 67 Id 235; 87 Id. 40.

2. The evidence is sufficient.

OPINION

HUMPHREYS, J.

Appellant was jointly indicted with Porter Brown and four others, in the Garland Circuit Court, for the crime of arson, by feloniously, wilfully and maliciously setting fire to a house in said county, on the 29th day of March, 1919, owned by Sue Bledsoe. Appellant requested and was granted a severance, and, upon trial, was found guilty, and his punishment fixed at two years in the penitentiary. From the judgment of conviction, an appeal has been duly prosecuted to this court.

The theory of the State was that appellant entered into a conspiracy with Porter Brown to run certain negroes out of the Little Georgia settlement by dynamiting and burning their houses. In support of this theory the State proved by Matt Reynolds that, prior to the dynamiting and burning of four houses in that neighborhood, on the night of March 29, 1919, appellant had talked to him about posting notices to run off a negro by the name of Garland Carroll, one of the inhabitants of Little Georgia, who owed both appellant and the witness; and by Ples Miller that, about a month before said crime was committed, appellant had said to him: "Bruce, how would you like to give the negroes a round tonight? If you say so, we will go up there and clean up on them and maybe dynamite or maybe kill one;" that shortly thereafter appellant proposed to him that they run off an old negro by the name of Andy Greenwood, a bootlegger in the neighborhood, suggesting that they would obtain for their trouble fifteen gallons of whiskey and $ 25 from the Government for turning the old negro's still in. The State also proved that appellant rode around the neighborhood the evening before the fire with Porter Brown, who stopped and went into several houses belonging to the negroes; that, while Porter Brown was in the house interviewing certain negroes, and out of the hearing of appellant, appellant had called to him "to make minutes short there that evening;" that, the day following the fire, appellant had come into the neighborhood inquiring as to what had become of the people.

Over the objections and proper exceptions of appellant, the State was permitted to prove statements made by Porter Brown, out of the presence and hearing of appellant, to some six or seven parties living in the Little Georgia settlement, which tended to implicate appellant in the burning of the houses on the night of March 29, 1919. Most of these statements occurred during the afternoon before the fire on said night.

The State was also permitted to prove, over the objections and proper exceptions of appellant, statements by Porter Brown, out of the presence and hearing of appellant, to several parties after the burning of the houses, which tended to implicate appellant in the arson.

It is insisted by appellant that the court erred in admitting the statements of Porter Brown, tending to connect appellant with the crime charged, made before the crime was committed, for the reason that a conspiracy to commit a crime cannot be established by the declarations or statements of a co-conspirator in the absence of the other. In other words that before the declarations of Porter Brown could have been admitted against appellant, it was incumbent upon the State to show, by evidence independent of the declarations themselves, that a conspiracy existed between them to run the negroes out of Little Georgia...