Shipp v. State

• Decision Date: 03 October 1966
• Docket Number: No. 5158,5158
• Citation: 406 S.W.2d 361,241 Ark. 120
• Parties: Johnny Paul SHIPP, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 361

406 S.W.2d 361

241 Ark. 120

Johnny Paul SHIPP, Appellant, v. STATE of Arkansas, Appellee.

No. 5158.

Supreme Court of Arkansas.

Oct. 3, 1966.

Rehearing Denied Nov. 7, 1966.

Jack L. Lessenberry, Little Rock, for appellant.

Bruce Bennett, Atty. Gen., H. Clay Robinson, Asst. Atty. Gen., Little Rock, for appellee.

McFADDIN, Justice.

Appellant, Johnny Paul Shipp, was charged, tried, and convicted of the offense of robbery (Ark.Stat.Ann. § 46--3601), and brings this appeal. His motion for new trial contains 25 assignments, which we will group and consider in suitable topic headings.

I. Motion To Quash The Jury Panel. This was a two-point motion. The first point was that the jurors were not qualified because they had not complied with the recent Amendment No. 51. That point was completely answered in the cases of Coger v. City of Fayetteville, 239 Ark. 688, 393 S.W.2d 622; and Harris v. State, 239 Ark. 771, 394 S.W.2d 135; wherein we held that the Act No. 126 of 1965 was valid and was passed to eliminate just such a motion as was here made. The second point of the motion to quash was that Negroes had been excluded from the petit jury panel and that even though the appellant was a white man, still he was entitled to have Negroes on the jury panel. We see no need to discuss the merits, if any, of this point, because the record here fails to show that the appellant exhausted his peremptory challenges. In such a situation we have held that the appellant cannot complain of the composition of the jury. One such recent case so holding was Trotter and Harris v. State, 237 Ark. 820, 377 S.W.2d 14, cert. denied Harris v. Arkansas, 379 U.S. 890, 85 S.Ct. 163, 13 L.Ed.2d 94, in which we said:

'Throughout the years, no rule of procedure has been more consistently adhered to than the rule that a defendant cannot complain of the composition of the jury if he does not exhaust his challenges. In Benton v. State, 30 Ark. 328, decided in 1875, Chief Justice English pointed out that this rule had stood as a precept of criminal practice in this state, for a period of over 22 years. In a long line of cases, we have consistently upheld the rule to the present time. A cursory examination of our cases reveals over thirty-five criminal cases in which this rule has been cited and adhered to. * * *'

II. Sufficiency Of The Evidence. The State offered evidence which showed that the appellant had persuaded Lee Edwin Goolsby to rob the Joiner branch of the First National Bank of Osceola, so that the appellant and Goolsby could use the money in a joint venture; that on Monday morning, February 8, 1965, Goolsby went alone to the bank and at the point of a loaded pistol took in excess of $9000.00; that Goolsby concealed the money at his home and it was subsequently recovered. Goolsby admitted all of this and said that the appellant had suggested the planned robbery. If the evidence of Goolsby, the accomplice, was corroborated to the extent required by law, then the evidence was sufficient to support the appellant's conviction; and that brings us to the issue of corroboration of the accomplice Goolsby.

III. Corroboration. Our statute on corroboration is Ark.Stat.Ann. § 43--2116 (Repl.1964), which reads:

'A conviction cannot be had in any case of felony 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 of. committed, and the circumstances thereof. * * *.'

We have many cases involving the sufficiency of the evidence to corroborate the accomplice. Some of these are: Knowles v. State, 113 Ark. 257, 168 S.W. 148, Ann.Cas.1916C, 568; Casteel v. State, 151 Ark. 69, 235 S.W. 368; Powell v. State, 177 Ark. 938, 9 S.W.2d 583; and Underwood v. State, 205 Ark. 864, 171 S.W.2d 304. In Underwood v. State, supra, we stated the rule:

'The corroborating testimony required by this statute must be of a substantial character, which of itself and independently of the statement of the accomplice tends in some degree to connect the defendant with the commission of the crime, although such evidenced need not in itself be sufficient to support a conviction. * * * Evidence which merely raises a suspicion that accused may be guilty, or which is as consistent with defendant's innocence as guilt is not sufficient. * * * The question of the sufficiency of the corroborating evidence justifying submission of the question of defendant's guilt to the jury must, of necessity, be governed by the facts and circumstances of each particular case, having regard for the nature of the crime, the character of the accomplice's testimony and the general requirements with respect to corroboration.'

With this rule thus clearly stated, we come to the evidence in the case at bar. The only evidence to corroborate the accomplice Goolsby was that relating to the rain suit and gloves which Goolsby wore at the time of the robbery. ¹ Goolsby testified that appellant purchased a rain suit and gave it to Goolsby with instructions that he wear it in making the robbery; and Goolsby testified that after the robbery he threw the rain suit in a ditch along side the highway. The rain suit was found in the ditch and introduced into evidence. Don Rogers testified that he worked at Graber's Department Store and that on Monday morning, February 8, Johnny Paul Shipp came into the store about nine o'clock and purchased a two-piece rain suit; that Shipp tried on the rain suit; and that Shipp wanted to buy a rain suit with a hood. The witness said the rain suit he sold Johnny Shipp was like the one introduced in evidence; but he could not say that it was the identical one sold to Shipp.

The other and far more substantial corroborative evidence was given by Sheriff William Berryman. He testified that Shipp was arrested and placed in jail; and the Sheriff sent for the witness Rogers, who had sold Shipp a rain suit, and the witness Prince, who had sold Shipp some gloves; that he warned the witnesses that they were to say nothing to the appellant; that the next day the appellant sent for the Sheriff, who went to the jail to see the appellant, and here is Sheriff Berryman's testimony:

'I asked if he wanted to see me. He told me, those people over there looking at him so on, he did buy that rain suit and gloves, but he bought it for the business. I didn't cross-examine or inquire into it any way, just left it at that.'

And again the Sheriff testified as to appellant:

'Q. And he had a note pad in his hand and told you he was the one who bought this rain gear and was the one who bought these gloves?

'A. Yes, sir.'

And on cross-examination Sheriff Berryman testified:

'Q. You are not saying or suggesting to this jury Johnny Shipp said he had bought this particular rain suit?

'A. He said he bought the rain suit and gloves, yes.'

Thus the evidence shows that the appellant admitted to Sheriff Berryman that the particular rain suit in evidence was the...