State v. Owen

• Decision Date: 27 June 1966
• Docket Number: No. 2,CA-CR,2
• Citation: 3 Ariz.App. 509,415 P.2d 907
• Parties: The STATE of Arizona, Appellee, v. Oliver Brindley OWEN, Appellant. * 62.
• Court: Arizona Court of Appeals

Page 907

415 P.2d 907

3 Ariz.App. 509

The STATE of Arizona, Appellee, v. Oliver Brindley OWEN, Appellant. ^*

No. 2 CA-CR 62.

Court of Appeals of Arizona.

June 27, 1966.

Richard F. Harless, Phoenix, for appellant.

Darrell F. Smith, Atty. Gen., Norman E. Green, Pima County Atty., Carl Waag, Deputy County Atty., Pima County, Tucson, for appellee.

KRUCKER, Chief Judge.

An information was filed in the Superior Court of Pima County, Arizona, on May 17, 1963, charging the appellant, Oliver Brindley Owen, in three counts, arson, arson with intent to defraud insurer, and conspiracy. Trial was held and the jury returned verdicts of guilty on all three counts as charged. From these convictions the appellant appeals.

Appellant Owen, an Evangelical minister, was pastor of a small church in Tucson, which he also occupied as his home, and was contracting to purchase. On July 31, 1962, a fire occurred in the church area of this building and damage was estimated at $3,300.00. About eight months after the fire, criminal charges were filed, since the Tuscon Fire Department investigators determined that the fire was incendiary in nature. The complaining witness, one Samuel F. Butler, testified that the appellant had employed him to burn the church; that he (Butler) did not start the fire but that he enlisted the assistance of one Jose Luis Castillo; that they went to the alley in the rear of the church and that Castillo went on the premises with a can of gasoline, returned, and that they then left the neighborhood. Butler did not see Castillo enter the church or start any fire. Castillo was not a witness at the trial.

Sometime after the trial, Butler signed an affidavit to the effect that he was not hired by the appellant to burn the church.

There were no eye witnesses to the burning of the church or testimony implicating or connecting the appellant Owen to the crime except the testimony of the witness Butler. A Mrs. Kengla testified that she saw two men enter the church by the front door prior to the fire. One of these men was identified as Butler.

The assignments of error deal with lack of instructions concerning corroboration of the testimony of an accomplice and with the admission of prejudicial testimony concerning prior fires.

From a complete examination of the record, we find no testimony implicating the defendant with the incendiary fire, except the testimony of the witness Butler. Nor can we find any testimony corroborative of Butler's testimony, except physical evidence clearly showing the fire to be of incendiary origin.

A.R.S. § 13--136 states:

'A conviction shall not be had on the testimony of an accomplice unless the accomplice is corroborated by other evidence which, in itself and without aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.'

There is no question that Butler's testimony, if taken as true, clearly made him an accomplice to any acts of the defendant alleged in the information. No instruction was requested or given to the jury pertaining to the law applicable to the testimony of an accomplice. Our Supreme Court has most recently, in State v. Howard, 97 Ariz. 339, 400 P.2d 332 (1965), stated that failure to instruct the jury on the applicable principles of law concerning the necessity for corroboration of the testimony of an accomplice, even though not requested, is reversible error. Also see State v. Betts, 71 Ariz. 362, 227 P.2d 749 (1951).

In the case before us, assuming that sufficient evidence was introduced to corroborate the witness Butler's testimony, we hold that it is still necessary to instruct the jury that the testimony of an accomplice must be corroborated in accordance...