Moore v. State

• Decision Date: 22 November 1971
• Docket Number: No. 5611,5611
• Citation: 472 S.W.2d 940,251 Ark. 436
• Parties: Paul MOORE et al., Appellants, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 940

472 S.W.2d 940

251 Ark. 436

Paul MOORE et al., Appellants, v. STATE of Arkansas, Appellee.

No. 5611.

Supreme Court of Arkansas.

Nov. 22, 1971.

R. H. Hixon, Paris, and Donald Goodner and Donald Poe, Waldron, for appellants.

Ray Thornton, Atty. Gen., Fred H. Harrison, Asst. Atty. Gen., Little Rock, for appellee.

HARRIS, Chief Justice.

Appellants, Billy E. Hutson, Paul Moore, Larry Cunningham, Johnny Wayne Cunningham and Dorothy Lois Moore Little, appeal from a judgment wherein Hutson, Moore and Larry Cunningham were convicted of the crimes of burglary and grand larceny, being sentenced to two years for burglary and one year for grand larceny, and Johnny Wayne Cunningham and Dorothy Lois Moore Little were convicted of grand larceny, being sentenced to one year each. The information charged the first three with breaking and entering a building owned by Sam Rice with the felonious intent to commit grand larceny, and the larceny count charged all appellants with stealing $93.75 in cash and ten cases of Budweiser beer. For reversal, the principal argument is that the evidence is insufficient to sustain the convictions, more specifically, that there is a lack of corroborating testimony of the evidence given by Mary Shifflett, an accomplice.

Sam Rice, owner of Sam's Tavern, testified that he left his place of business about 12:30 (early morning) on November 11, and returned about 10:00 a.m; that $50.00 in bills and $90.00 in change had been taken, together with approximately ten cases of beer, which he described as 'An unusual brand of beer and that was the type of beer that was missing'. ¹ Rice said that a window was broken out on the south end of the building, and that the back door was open. He did not know the appellants and had never seen any of them at his place of business. Trooper Bernard Young of the State Police corroborated the fact that the window was broken and the door was open. Mary Shifflett, 13 years of age, who was not prosecuted, apparently because of her age, testified that she joined the defendants at Mansfield, Arkansas. She said that it had been prearranged for her to be picked up there and that she got into the front seat of the Chevrolet automobile between Jeffery Plowman, ² driver of the car, and Johnny Cunningham; that this occurred about 11:50 p.m. Miss Shifflett stated that they drove around, bought gas and drove to Paris. She said that she did not see anybody on the street and that they drove near the tavern which she identified by a sign. On the street back of the tavern, the car was stopped and Hutson got out. When asked if there was any discussion about breaking into the tavern before it happened, the witness stated that she heard conversation about breaking in, and that all appellants were present in the car at that time; however, she never did relate the conversation or identify those who took part in it. She said, 'They were going to get some beer. I didn't know they were going to get any money'. After Hutson left the car, Miss Shifflett stated that the rest all drove off, rode around for awhile, and then came back and picked up Hutson; that he had money and a case of beer. She said Hutson stated that he 'got the door open and broke a window'; that she didn't know what he used except 'they were going to use this thing called a tire tool'. She said she got some of the change in nickels. According to the witness, the case of beer was placed in the back seat on the floor of the car, uncovered; they then drove around for awhile, came back, and let Moore and Larry Cunningham State Police Trooper Troy Oliver questioned Dorothy Lois Moore Little in the jail, after she had waived her rights under the case of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The trooper's evidence is not easy to follow since he stated that she made one statement, and then corrected it by making another, and it is difficult to definitely determine which facts were first given, and which facts were stated in correction. However, after a detailed study of the testimony, it appears that appellant (according to the officer) first stated that Moore and Larry Cunningham did not go to Paris with the other members of the group; subsequently, she said they were originally in the car but a man by the name of Tom Black ⁴ was taken to Huntington; they then returned through Mansfield where Moore and Larry Cunningham left the car, and the others drove on to Paris. Oliver testified that Mrs. Little said the other appellants and Mary Shifflett went on to Paris; that Little had a date with Hutson and Shifflett had a date with Plowman; ⁵ that after they arrived in Paris, Hutson got out of the car while they waited, and returned later with a case of beer and a large quantity of change. This was as far as Oliver detailed her statement, the officer then simply stating that with the difference that Mrs. Little said Moore and Larry Cunningham did not go to Paris, her statement was almost identical with that of Mary Shifflett. On trial, Mrs. Little testified that Moore and Larry Cunningham did go to Paris but got out of the car almost as soon as they arrived to answer a call of nature, and these two were not with the others in Paris the rest of the night; on the way home the group in the car picked up Moore and Larry Cunningham, who were hitch-hiking a ride back to Mansfield.

out at the tavern. The rest continued to ride around in the city until they were stopped by Officer Graham of the City Police around 3:30 a.m., who then took all occupants of the car to the police station. The length of time they were kept at the station varies with the testimony all the way from 30 minutes to a couple of hours. After they were released, Miss Shifflett said that these appellants drove back to the tavern but Moore and Larry Cunningham were not there, and never did get with them again; however, they saw five cases of beer 'by the building behind the tavern', picked it up, and drove on back to Mansfield. Miss Shifflett testified that she placed her nickels in the truck of a friend, Diana Joyce. ³

All defendants, except Hutson and Larry Cunningham, denied having anything to do with the break-in at the tavern, and denied taking any beer or money. These two did not testify.

What are the applicable rules of law concerning a conviction based upon the testimony of an accomplice? In Pitts v. State, 247 Ark. 434, 446 S.W.2d 222, we said:

'There is no dispute about the applicable rules of law. Under the statute a conviction for a felony cannot be had upon the testimony of an accomplice 'unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof' Ark.Stat.Ann. § 43--2116 (Repl.1964). In construing the statute we have held that the test of the sufficiency of the corroboration is whether, 'if the testimony of the accomplice is eliminated from the case', the other evidence establishes the required connection of the accused with the commission of the offense. Froman v. State, 232 Right off, it is apparent that there is no corroborating evidence to sustain the convictions of Moore and Larry Cunningham. No officer, state or city, even saw these two men on the night in question, and the only testimony that implicates them is that of Mary Shifflett, who said they were let out at the tavern, and subsequently, the others, returning from the police station, saw five cases of beer in back of a building next to the tavern, the inference being that the cases were...