Satterfield v. State

• Decision Date: 14 October 1968
• Docket Number: No. 5375,5375
• Parties: Leon SATTERFIELD, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 472

432 S.W.2d 472

245 Ark. 337

Leon SATTERFIELD, Appellant, v. STATE of Arkansas, Appellee.

No. 5375.

Supreme Court of Arkansas.

Oct. 14, 1968.

Bon McCourtney & Associates by David N. Laser, Jonesboro, for appellant.

Joe Purcell, Atty. Gen., Don Langston, Asst. Atty. Gen., Little Rock, for appellee.

BROWN, Justice.

Leon Satterfield appeals from a conviction for arson involving the alleged setting fire to a barn. The issues raised which are determinative of the appeal concern (1) the refusal of the court to submit to the jury the question of whether three of the State's witnesses were accomplices, and (2) the injection into the trial of evidence of other alleged acts of arson.

On an October night, 1967, a barn filled with baled, dry hay, and located on the outskirts of Salem, Fulton County, was destroyed by fire. The principal witnesses for the State were three teenagers, two boys and a girl, who testified in substance that they were in Satterfield's car and accompanied him to the scene; that the defendant mentioned his intentions before arriving; that upon arrival, Satterfield stopped the car some twenty-five yards from the barn and proceeded to the nearest barn corner; that he returned to the car in a matter of minutes and drove away; that after driving a short distance they saw the fire develop, coming from the corner of the barn where Satterfield had stopped. Other pertinent facts will be related as appellant's two principal points are discussed.

Point I: The Trial Court Erred in Refusing to Give Requested Instructions Which Would Permit the Jury to Determine Whether Satterfield's Three Companions Were Accomplices. We hold this point to be meritorious. The three witnesses and appellant were well acquainted, of approximately the same age, and their social activities often brought them together. There was testimony that Satterfield and at least one of his companions had been drinking intoxicants that night. The girl had been with appellant continuously for more than two hours preceding the fire; the two boys joined the couple in Satterfield's car at a dairy diner; the four rode around town and then headed out on the county road toward the barn; there was testimony that Satterfield pointed out the barn and that one of the companions remarked that it was filled with hay; the companions sat by while Satterfield purportedly went to set the fire; a return trip was then made to the dairy diner; after eating a sandwich and fixing a flat tire, Satterfield and the two boys returned to the scene of the fire and watched the burning for some ten or fifteen minutes.

There is another circumstance which might well have been significant to the jury. So far as the record discloses, none of the companions revealed their knowledge of the crime, at least until they were faced with evidence of that knowledge. The passive failure to disclose commission of a crime does not make one an accessory after the fact; however, the failure to so disclose could shed light on his relation with the wrongdoer at the time the crime was committed.

One who stands by and aids, abets, or assists in the perpetration of a crime is an accessory before the fact. Ark.Stat.Ann. § 41--119 (Repl.1964). When the Legislature used the phrase 'one who stands by and * * * abets' it is assumed it was not playing with words; to the contrary, an abettor is well recognized in the law. If one stands by and aids, he gives assistance and support to supplement the efforts of the principal; that action does not really describe an abettor, although 'aid' and 'abet' are often used as synonymous. If one stands by and encourages, baits, or incites the commission of a crime he is an abettor. State v. Western Union Tel. Co., 13 N.J. 172, 80 A.2d 342 (1951); see Black's Law Dictionary 4th Edition. Also, see Ark.Stat.Ann. § 41-- 504 (Repl.1964), which is a strongly worded statute covering accomplices to arson.

In connection with Point I, we have given consideration to two well-established rules of this court:

First: 'Whether a witness is an accomplice to an alleged crime is, generally speaking, a question of fact for the jury at least, if the facts are in dispute, it is a mixed question of law and fact.' Rogers v. State, 136 Ark. 161, 206 S.W. 152 (1918); and,

Second: "The test, generally applied to determine whether or not one is an accomplice, is: Could the person so charged be convicted as principal, or an accessory before the fact, or an aider and abettor upon the evidence?" Simon v. State, 149 Ark. 609, 233 S.W. 917 (1921).

We hold that the status of Satterfield's companions was a question of fact for the jury, and that there were sufficient facts produced which meet the test in Simon, particularly in light of the inclusion of abettors as accomplices. See Boyd v. State, 215 Ark. 156, 219 S.W.2d 623 (1949).

Point II. The Court Erred in Allowing the Prosecuting Attorney to Make Any Remarks in His Opening Statement to the Jury Concerning Alleged Prior Similar Offenses, and in Refusing to Instruct the Jury at the Close of all the Evidence to Disregard Those Remarks. In his opening statement the prosecutor told the jury that he planned to show similar incidents of fires for the purpose of 'showing intent, scheme, design, and so forth.' The testimony about another fire that night was very meager and the single witness who mentioned it never described it, never located it, and certainly did not connect the defendant with it.

At the close of all the testimony, counsel for defendant asked that the jury be instructed to disregard the prosecuting attorney's opening reference to prior similar offenses. That was not an unreasonable request and we think, under the circumstances, it should have been granted. Another fire had been mentioned in the testimony and the trial court frankly conceded that it was of no value. So when the sketchy testimony and the prosecuting attorney's statement are combined it is not improbable that some jurors may have developed the idea that the defendant was in fact connected with another fire. The accused had a right to have that possibility removed. Further, we have examined the instructions and we find that the standard instruction to the jury to disregard opening statements and closing arguments as evidence was not given.

To our holding on Point II should be added a comment for the guidance of the court in the event of retrial. Evidence of other incidents of arson would not be admissible unless that evidence can be shown to meet the test announced in many decisions. See Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954) and the numerous cases there cited. We adhere to the majority rule which is discussed in 22A C.J.S., Criminal Law § 682:

'The general rule, which is subject to exceptions stated infra §§ 683--690, is that, on a prosecution for a particular crime, evidence which shows or tends to show that accused has committed another crime wholly independent of, and unconnected with, that for which he is on trial, even though it is a crime of the same sort, is irrelevant and inadmissible.'

Another point raised by appellant should be mentioned. It concerns the alleged right of a woman juror, who has been summoned and sworn in on the panel, to then assert her privilege of declining to serve. The answer to that question involves the constitutionality of Ark.Stat.Ann. § 39--113 (Repl.1962). Our Constitution and statutes provide that no woman can be compelled to do jury duty. However, the cited section requires her to decline service at the time she is notified 'and not thereafter.' We do not pass on constitutional questions unless it is necessary to a disposition of the litigation. Searcy County v. Stephenson, 244 Ark. 54, 424 S.W.2d 369 (1968).

Reversed and remanded.

FOGLEMAN, J., dissents.

FOGLEMAN, Justice (dissenting).

I dissent from the reversal of this case because I am not convinced that we could sustain a conviction of the witnesses who are alleged to be accomplices of appellant if the state's evidence were exactly what we have before us.

If these alleged accomplices, Jerry Turner, Larry Dunn and Divine Coggins, were tried on this testimony, we would have substantially the following:

Divine Coggins was with Leon Satterfield for about three and one-half hours beginning about 6:30 p.m. on the day the barn was burned. She rode around with him in Salem until about 9 p.m. when they went to a Dairy Queen there. Sometime about 9:30 they were joined by Jerry Turner and Larry Dunn. Appellant had been driving his own car and drove it at all times on this evening. Appellant had been drinking Country Club Malt Liquor. The four left the Dairy Queen and shortly thereafter, appellant turned his car off the highway onto a dirt road along which the Wolf barn was located. After he pulled off the highway, appellant made some statement about the barn, either to the effect that the barn would 'burn good' or said: 'There's a barn there we missed.' Jerry Turner responded that the barn was full of hay and appellant remarked: 'That will make it burn better.' When appellant said something about burning the barn, the others told him not to and said he had better not. When appellant was talking, he wasn't really making much sense about anything. He just jabbered but the main thing he was talking about was burning the barn.

Jerry Turner, while in the car with appellant, had seen a fire about five miles away from the Wolf barn some 15 or 20 minutes earlier. This fire was never identified as to place or nature. Jerry Turner knew when appellant made his remarks that he was talking about burning the barn. Appellant did not say he was going to burn the barn and was laughing and talking when he made the remarks mentioned. The party arrived at the barn about 30 or 45 minutes after leaving the Dairy Queen. Appellant turned around, parked his car, jumped out and went toward the barn. As he walked, he was laughing and hollering as one does when...