Paschal v. State
| Decision Date | 21 October 1968 |
| Docket Number | No. 5368,5368 |
| Citation | 432 S.W.2d 879,245 Ark. 396 |
| Parties | Willie Lee PASCHAL, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Claude Carpenter, Jr., and Roy Finch, Jr., Little Rock, for appellant.
Joe Purcell, Atty. Gen., Don Langston, Asst. Atty. Gen., Little Rock, for appellee.
On the night of March 29, 1967, thieves broke into the post office at Emerson and carried away a heavy safe. When the safe was found the next day, more than a mile from the post office, it had been opened with an acetylene torch, and $305.34 had been taken.
Informations were filed against Willie Lee Paschal, Jimmie Dale Paschal, and Henry Lee Cooper, charging burglary and grand larceny. Jimmie Dale Paschal pleaded guilty and testified for the State at the trial of the appellant, Willie Lee Paschal. This appeal is from a verdict and judgment finding Willie Lee Paschal guilty and fixing his punishment at 12 years imprisonment upon each charge.
Jimmie Dale Paschal, according to the undisputed proof, was an accomplice; the court so instructed the jury. Under the statute applicable to felonies, the testimony of an accomplice must be corroborated by other evidence tending to connect the accused with the commission of the offense. Ark.Stat.Ann. § 43--2116 (Repl.1964). There is no such corroboration here. Laying aside Jimmie Dale's testimony, we find no proof whatever that connects the appellant with the commission of the crimes. At most the State proved that the safe was carried away in a station wagon owned by the appellant's sister (and even that testimony was later stricken from the record as hearsay); but there is no proof, other than the accomplice's testimony, that tends to connect the appellant with the commission of the offenses.
The judgment must be reversed, but in our conference a question was raised about whether the case should be remanded for a new trial or be dismissed. It was suggested that when the trial court is found to have erroneously refused to direct a verdict for the accused on the ground that the evidence is insufficient to support a conviction, a remand of the case for a new trial would violate the constitutional provision against double jeopardy.
We do not consider that suggestion to be sound. The decision of the accused to appeal is a waiver of the plea of former jeopardy. As Dean Miller puts it:
At the common law neither the defendant nor the King could appeal from a judgment upon a verdict of guilty or acquittal. However, both in England and in the United States, the privilege has been granted to the defendant to appeal from a judgment on a verdict of conviction. Consequently the reason for the old rule making former conviction a proper plea in bar of a second prosecution under such circumstances, has ceased to exist and it is now generally recognized as no infringement on defendant's rights, to require that if a conviction be set aside on appeal, he should be returned to the trial court for a new trial. (Miller, Criminal Law, § 186(c) (1934).)
We expressed much the same point of view in Johnson v. State, 29 Ark. 31 (1874), saying:
It is true that, by a constitutional provision as well as by the common law, no man can be twice put in jeopardy of life or limb for the same offense; but, where the first jeopardy has resulted in his conviction, it is rather a merciful interposition of the court, than any invasion of his rights, to set aside the conviction upon his own application in order to afford him the opportunity of another trial.
The precise point was decided in Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335 (1950), where the appellant argued that, upon a reversal of the trial court for its refusal to direct a verdict of not guilty for insufficiency of the evidence, a remand for a new trial would subject him to double jeopardy. In rejecting that argument the court said:
Petitioner's contention that to require him to stand trial again would be to place him twice in jeopardy is not persuasive. He sought and obtained the reversal of his conviction, assigning a number of alleged errors on appeal, including denial of his motion for judgment of acquittal. '* * * where the accused successfully seeks review of a conviction, there is no double jeopardy upon a new trial.' State of La. ex rel. Francis, v. Resweber, 329 U.S. 459, 462, 67 S.Ct. 374, 375, 91 L.Ed. 422.
In reversing criminal convictions for insufficiency of the evidence we have customarily remanded the cause for a new trial (Slate v. State, 221 Ark. 527, 254 S.W.2d 314 (1954); Taylor v. State, 211 Ark. 1014, 204 S.W.2d 379 (1947)) unless it appears that the case has been fully developed. Edens v. State, 235 Ark. 284, 357 S.W.2d 641 (1962). In the case at bar there are indications in lthe record that additional testimony is available to the State.
Reversed and remanded for a new...
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Cooper v. State, 5549
...on the ground that the testimony of a third defendant, an accomplice, had not been sufficiently corroborated. Paschal v. State, 245 Ark. 396, 432 S.W.2d 879 (1968). After that decision Cooper filed a petition under Rule 1, asserting that in his case the corroborating evidence had likewise b......
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Cockrell v. State
...was working. The accomplice was also living with appellant. Appellant urges that we reverse and dismiss the case. In Paschal v. State, 245 Ark. 396, 432 S.W.2d 879 (1968), the same state of facts is found as in the case at bar. We held that the evidence corroborating the accomplice was insu......
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Moseley v. State, CR--75--71
...on an appeal or writ of error brought by himself . . ..' This court has consistently followed the above rule. In Paschal v. State, 245 Ark. 396, 432 S.W.2d 879 (1968), a felony conviction was reversed because the trial court erroneously refused to direct a verdict for the accused on the gro......
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DuBois v. State
...the deficiencies we find in this record may well be supplied. Under this record a remand is proper as was done in Paschal v. State, 245 Ark. 396, 432 S.W.2d 879. OTHER POINTS Numerous other grounds for reversal are urged in the brief filed on behalf of DuBois. This Court has carefully exami......