Pearrow v. State
| Decision Date | 22 November 1920 |
| Docket Number | 6 |
| Citation | 225 S.W. 308,146 Ark. 201 |
| Parties | PEARROW v. STATE |
| Court | Arkansas Supreme Court |
Appeal from White Circuit Court; J. M. Jackson, Judge; reversed.
STATEMENT OF FACTS.
Clyde Pearrow was indicted for the crime of burglary and grand larceny charged to have been committed by breaking into some box cars owned by the Missouri Pacific Railroad Company, and taking therefrom some dress goods, window shades and cigarettes.
Lotis Lockaby was a witness for the State. According to his testimony, Clyde Pearrow, Clark Pearrow, Monroe Price and himself broke into a box car belonging to the Missouri Pacific Railroad Company on its right-of-way near the town of Bald Knob in White County, Arkansas, at about two o'clock at night on the 27th day of December, 1919. They each took four cases of Camel Cigarettes from one box car. They broke into another box car the same night and got eight bolts of dress goods and some window shades. Lockaby sold his cigarettes for $ 8 a thousand. There are ten thousand cigarettes to the case. He did not know what the defendant did with his part of the cigarettes. Lockaby made a statement to the special agents of the railroad company, in the office of its local attorney in Bald Knob, about the burglary. He was arrested and stayed in jail two nights before he made bond.
Subsequently at the instance of the defendant and some of his relatives Lockaby made another written statement under oath in which he stated that the first statement made at the instance of the representatives of the railroad company was obtained by threats and by promises to turn him loose if he would make a statement implicating the defendant and others in the box car burglary. Lockaby stated on the stand that this latter statement made by him was not true, and that he made it to please the defendant and his friends, because they had insisted on him making it.
Another witness for the State testified that the defendant offered to sell him some Camel cigarettes at $ 5 per thousand soon after the burglary of the box car occurred. He did sell cigarettes to other persons who were in the witness' place of business.
According to the testimony of Ed Burford, he took a trunk full of cigarettes to Little Rock for the defendant soon after the burglary occurred.
Two other witnesses testified that the defendant sold them Camel cigarettes soon after the burglary occurred. One of them stated that the defendant gave him a quantity of cigarettes to sell for him.
The defendant was a witness for himself, and denied that he had anything whatever to do with taking any goods from the box cars of the Missouri Pacific Railroad Company. He denied that he offered cigarettes for sale soon after the burglary occurred. The defendant also testified that the special agents of the railroad company arrested him and carried him to the office of its local attorney in the town of Bald Knob that they cursed him and threatened in every way to induce him to make a confession that would implicate himself and others in taking the goods from the box cars.
On cross-examination, the defendant admitted that he had signed several statements relative to the alleged burglary, but said that the statements were never read over to him, and that he did not know what was in them; that they were made at the office of the local attorney of the railroad company at the time, and he was threatened to be put in a sweat box if he did not make a confession of the alleged burglary.
Other witnesses for the defendant corroborated his testimony and further stated that he was on the train on his way to Memphis on the night the burglary was committed.
In rebuttal, it was shown by the State that no threats were made against the defendant and the witness Lockaby and others to induce them to make a confession of the burglary, nor was any hope of escape from punishment held out to them as an inducement to confess the crime.
In rebuttal, the State also introduced in evidence several affidavits signed and sworn to by the defendant in which he admitted that he, together with Lotis Lockaby and Bud Sims broke into a box car of the railroad company at Bald Knob and took out some bolts of domestic, meat and tobacco and carried them home.
In another sworn statement he said that he merely went with Sims and Lockaby and helped them carry away some meat, lard and other goods which they told him they had taken from a box car of the railroad company. In still another affidavit the defendant admitted that he carried some bolts of domestic away which Lockaby and another person had taken from a car in the yards of a railroad company at Bald Knob.
The jury returned a verdict of guilty of grand larceny against the defendant and fixed his punishment at one year in the penitentiary. From the judgment of conviction, he has duly prosecuted an appeal to this court.
Judgment reversed and cause remanded.
Brundidge & Neelly and G. G. McKay, for appellant.
1. The court erred in admitting as evidence the affidavits of defendant to the effect that he and other persons had broken into the box car and taken the goods; this was improper as a confession. These statements were not admissible, as they were statements relative to other offenses and not connected with the case at bar. 114 Ark. 481; 107 Id. 568; 66 Id. 53; 18 L. R. A. (N. S.) 768-791-9; 115 Ark. 390. See, also, 17 Ann. Cases 868; 3 Id. 893.
2. The evidence of Jake Smith as to how defendant was treated by the special agents of the railroad company, was competent, and it was error to refuse the testimony.
3. It was error to refuse to permit defendant to testify as to the conduct of State's attorney in the grand jury room.
4. Instruction 6, asked by defendant, was improperly refused. 114 Ark. 472; 17 Ann. Cases 868; 3 Id. 893. No. 10 should have been given. 130 Ark. 347; 109 Id. 332; 74 Id. 397; 1 R. C. L. 572.
John D. Arbuckle, Attorney General, and Silas W. Rogers, Assistant, for appellee.
1. The affidavits were admissible in evidence. 3 Enc. of Ev. 774; 217 S.W. 788; 132 Ark. 531; 133 Id. 264; 136 Id. 473.
2. What we have stated, supra, is applicable also as to the evidence of Jake Smith.
3. What happened in the grand jury room was privileged, as the indictment itself is not even a presumption of defendant's guilt. 122 Ark. 197.
4. The instructions are correct, and stated the law, and there is no error.
OPINIONHART, J. (after stating the facts).
It is earnestly contended by counsel for the defendant that the judgment should be reversed because the trial court admitted in evidence the affidavits of the defendant to the effect that he and other persons had broken into box cars belonging to the railroad company and had taken therefrom goods at other times than that charged in the...
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