Rogers v. State

• Decision Date: 21 December 1908
• Citation: 115 S.W. 156
• Parties: ROGERS v. STATE.
• Court: Arkansas Supreme Court

Page 156

115 S.W. 156

ROGERS v. STATE.

Supreme Court of Arkansas.

December 21, 1908.

Appeal from Circuit Court, Craighead County; Frank Smith, Judge.

Ben Rogers was convicted of robbery, and appeals. Reversed and remanded.

J. F. Gantney, for appellant. Wm. F. Kirby, Atty. Gen., and Danl. Taylor, Asst. Atty. Gen., for the State.

HILL, C. J.

Ben Rogers was indicted by the grand jury of Craighead county for robbery, was convicted, and has appealed. Fielder testified: That on the night of May 31, 1908, in the city of Jonesboro, he left a restaurant and was accompanied by one Tomlinson, and the defendant Rogers followed them. That Tomlinson offered him a drink of whisky, which he refused, and the defendant stepped up and said he would take a drink, and Tomlinson handed him the bottle, and he took a drink and dropped behind them with the bottle. He and Tomlinson walked under the shadow of some trees, and some one hit him from behind with a bottle, on the side of the head and face, and he was knocked senseless. After he fell some one beat him on the head and face with his fists, and either Tomlinson or the defendant ran his hands in his pockets and got his money. "After I was hit, I do not remember anything until I was being talked to by Arrington, chief of police, in a plumbing shop on South Main street." He was then permitted, over the objection of defendant, to state that: "Mr. Arrington asked me who robbed me, and I told him a white man whose name I did not know, and a negro whom they called Ben." The next morning he went to the jail to see if he could identify the defendant, who had been arrested. His eyes were so swollen that he could not see distinctly, and he asked that the defendant talk. The defendant did so, and he recognized him by his voice. The witness does not appear to have been cross-examined — at least the bill of exceptions does not show what part of his examination is in chief and what is cross-examination — and there is no inconsistent or contradictory statement in his testimony indicative that any part of it was brought out by cross-examination. Arrington, the chief of police, was permitted to testify, over the objections of defendant, that he had arrested defendant the night that Fielder was robbed, and that he found Fielder in a plumbing shop on South Main street. "I asked Fielder who robbed him. He said a white man and a negro; that he did not know who the white man was, but they called the negro Ben Rogers." No money or other property was found on the defendant after his arrest that belonged to Fielder. It appears that from one to two hours elapsed from the time that Fielder was robbed until he made the statement to the chief of police in the plumbing shop. The defendant testified, denying that he had robbed Fielder, and stated that he was at another place at the time of the occurrence. Several other witnesses testified tending to sustain his alibi.

The subject of prior consistent statements was recently considered by this court in Burks v. State, 78 Ark. 271, 93 S. W. 983, where one phase of it was discussed and the authorities reviewed. The court said: "After all, the effect of proof of previous consistent statements could only be to corroborate the statement of the...