Middleton v. State
| Decision Date | 18 February 1924 |
| Docket Number | 171 |
| Citation | 258 S.W. 995,162 Ark. 530 |
| Parties | MIDDLETON v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Pulaski Circuit Court, First Division; John W. Wade Judge; affirmed.
Judgment affirmed.
Murphy McHaney & Dunaway, for appellant.
J S. Utley, Attorney General, John L. Carter, Assistant, for appellee.
Clarence Middleton prosecutes this appeal to reverse a judgment and sentence of conviction against him for the crime of accessory before the fact to grand larceny.
The first assignment of error is that the court erred in allowing the defendant to be put on trial for the crime for which he was convicted after a jury had been selected to try him for a different offense.
It appears from the record that the prosecuting attorney first announced that the State would try the defendant on another indictment; but, after the jury was selected, the prosecuting attorney announced that the State would try the defendant on the indictment in question. The defendant, at the time, objected to the substitution of the indictment, and saved exceptions to the ruling of the court.
The change in the indictment was made because of the absence of a witness in the other case. The defendant did not request the court to select the jury anew, or to excuse any of the panel selected. The jury had never been sworn to try the other case, and was afterwards sworn to try the case at bar. It appears to us that, under the circumstances recited, the record shows that no prejudice resulted to the defendant, as far as the present case is concerned. He had already selected the jury as a fair one to try him under another indictment. The jury had not been sworn to try the first case. The defendant did not ask for them to be examined again as to any prejudice against him in the case at bar. He did not ask that any of the panel be excused. It is well settled in this State that a judgment of conviction will not be reversed unless prejudicial error was committed by the trial court. Sellers v. State. 93 Ark. 313, 124 S.W. 770: Monk v. State, 130 Ark. 358, 197 S.W. 580, and Rogers v. State, 136 Ark. 161, 206 S.W. 152.
The next assignment of error is that the court erred in allowing the prosecuting attorney to say, in his opening statement to the jury, over the objections of the defendant, the following: "The prosecutor, in his opening statement to the jury, stated that the State would prove that defendant had taken two other automobiles, or caused them to be taken, to one Woods' house, in the same way as the Studebaker car mentioned in the indictment, and that said cars had been stolen."
The indictment under which the defendant was tried and convicted charges him with advising and encouraging Roy McCallum and Louis Craig to steal an automobile from the Studebaker Corporation of America. To sustain their contention on this assignment of error, counsel for the defendant invoke the general rule that the commission of one crime is not admissible in evidence to prove the accused guilty of some other crime. It is equally well settled that there are several exceptions to the general rule. Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish motive on the part of the defendant, or that the evidence of the other offense shows it to be a part of the same criminal plan or scheme as the main offense. In other words, there must be, in the extraneous crime thus sought to be proved, some relation to or connection with the main offense. There must be a common motive or intent running through all the transactions, or they must be such in their nature as to show guilty knowledge on the part of the defendant at the time of the main transaction. Reed v. State, 54 Ark. 621, 16 S.W. 819; Nash v. State, 120 Ark. 157, 179 S.W. 159, and Hall v. State, 161 Ark. 453, 257 S.W. 61.
The statement of the prosecuting attorney is that the State would prove that the defendant had taken two other automobiles, or caused them to be taken, to Woods' house in the same Way as the Studebaker car mentioned in the indictment. This would tend to show a motive on the part of the defendant which induced him to advise and encourage McCallum to steal the car in question, or to show that it was a part of the general scheme of the defendant to procure other persons to steal automobiles for him.
The next two assignments of error relate to the testimony of Roy McCallum and Louis Craig, and may be considered together.
Roy McCallum was a witness for the State, and testified, without objection, that he stole the Studebaker ear at the instigation of the defendant, and carried it out in the country to Woods' house. Subsequently the defendant met him and Craig in a restaurant, and advised them to steal other cars to be used by him in running whiskey. No objection was made to any of the testimony of Mc-Callum.
Louis Craig was also a witness for the State, and testified about helping McCallum to steal two automobiles at different times, at the instigation of the defendant. The defendant advised them to steal the automobiles to be used by him in running whiskey, and agreed to pay them for doing it. On cross-examination he was asked if he had any knowledge of the stealing of the Studebaker car, or in any manner participated in it. Craig replied that he had nothing whatever to do with it.
Counsel for the defendant then moved to exclude the testimony with regard to the other stolen cars, except the Studebaker car charged in the indictment, and saved their exception s to the ruling of the court in refusing to exclude the testimony.
It is the contention of counsel for the defendant that the theft of the other two cars occurred subsequently to the theft of the Studebaker car charged in the indictment, and that therefore proof of these crimes in no sense would be a part of a common scheme on the part of the defendant to steal automobiles. They claim that the thefts of the other two cars, subsequent to that of the Studebaker car, are distinct transactions, and in no way connected with the theft of the Studebaker car.
We need not decide this question. Under our rules of practice, counsel could not wait until after the testimony had been admitted and then, as a matter of right, have it excluded, even if the theft of the other cars had no connection with or relation to the theft of the Studebaker car. They should have objected, in the first instance, to its introduction because no connection was shown between the two thefts.
A defendant is not permitted to sit by and allow testimony to be developed against him and then, as a matter of right, have it withdrawn from the jury. The exclusion of the testimony, after it had been offered, was a matter in the discretion of the court, and it does not appear to us that the court abused its discretion in this respect. It cannot be said that counsel for the defendant were misled by the court's action in allowing the opening statement of the prosecuting attorney with regard to the two thefts. There it was stated by the prosecuting attorney that he would prove that the defendant had taken two other automobiles, or caused them to be taken, to Woods' house in the same way as the Studebaker car. This, as we have already seen, would tend to show a common scheme on the part of the defendant to procure the theft of all the automobiles as a part of a common plan, and it does not appear that the opening statement of the prosecuting attorney was not made in good faith. Hence we are of the opinion that the defendant should have objected to the testimony of McCallum and Craig, with reference to their subsequent theft of automobiles, because they were not related to or connected with the theft of the Studebaker automobile, at the time the testimony was given.
The next assignment of error is that the evidence is not legally sufficient to support the verdict. It is earnestly contended by counsel for the defendant that there is not sufficient corroboration of the testimony of Roy Mc-Callum, who admitted that he stole the Studebaker car, and said that he did so at the instance of the defendant.
This court has uniformly held that the evidence relied upon for corroboration must, independently, and without the aid of the testimony of the accomplice, tend to connect the defendant with the commission of the crime. It is not necessary that the corroborating evidence should be sufficient to convict. It need only tend to connect the accused with the commission of the crime. Brewer v. State, 137 Ark. 243, 208 S.W. 290, and Haskins v. State, 148 Ark. 351, 230 S.W. 5. Tested by this rule, we think the corroborating evidence was sufficient.
H. F. Caskey, a salesman for the Studebaker Corporation, testified that a five-passenger Studebaker automobile was stolen from that corporation about ten o'clock in the morning in April, 1923, from the northwest corner of Fifth and Scott streets, in Little Rock, Arkansas. The witness stated that he first saw the automobile, after it had been stolen, at a farmer's house in Saline County, Arkansas.
On cross-examination he stated that the automobile was stolen on the last day of April, 1923.
Roy McCallum was the principal witness for the State. According to his testimony, he is nineteen years of age, and lives with his father and mother in Little Rock, Arkansas. He had known the defendant for about a year and a half, at the date of the trial. On the 30th day of April, 1923, the witness stole a Studebaker car belonging to the Studebaker Corporation, from Fifth and Scott streets, in the city of Little Rock Arkansas. He stole the car to...
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