State v. Sims

• Decision Date: 16 December 1965
• Docket Number: No. 1468,1468
• Citation: 409 P.2d 17,99 Ariz. 302
• Parties: STATE of Arizona, Appellee, v. Robert Lee SIMS, Appellant.
• Court: Arizona Supreme Court

Page 17

409 P.2d 17

99 Ariz. 302

STATE of Arizona, Appellee, v. Robert Lee SIMS, Appellant.

No. 1468.

Supreme Court of Arizona, In Banc.

Dec. 16, 1965.

Rehearing Denied Jan. 11, 1966.

Darrell F. Smith, Atty. Gen., Robert W. Pickrell, former Atty. Gen., Norman E. Green, County Atty. of Pima County, William J. Schafer, III, First Asst. County Atty. of Pima County, John L. Augustine, Deputy County Atty. of Pima County, for appellee.

William E. Hildebrandt, Tucson, for appellant.

STRUCKMEYER, Vice Chief Justice.

Appellant Robert Lee Sims and one Leo G. Davis were charged with the murder of Glendell M. Soape. Davis entered a plea of guilty, testified for the State and thereafter received a sentence of life imprisonment. Sims was convicted of first degree murder by a jury which fixed the punishment at death. From the conviction and sentence, this appeal by Sims has been taken.

On May 23, 1963, near the town of Sahuarita, in Pima County, Arizona, the body of Soape, an insurance salesman, was found in a barley field a short distance from the side of a dirt road. At the edge of the road were the footprints of two men and a woman. At the time the body was found, the only apparent wound was a laceration over the right eye. Subsequently, it was determined from an autopsy that Soape died from a blow which shattered the first cervical vertebra in his neck.

Both Sims and Davis lived in a cotton camp near the outskirts of Sahuarita. Davis was a cotton chopper and Sims was a supervisor of cotton choppers. Georgia Mae Marchman, age 27, an admitted prostitute, was at this time living with Sims as his wife. Marchman left Sahuarita about a week after Soape's death and the State was unable to take a statement from her until she was located in Texas in October, 1963. Marchman then returned to Pima County, Arizona, and an information charging Sims and Davis with the murder of Soape was filed.

The testimony of Marchman and Davis proved the corpus delicti of the crime, establishing that on the evening of May 23, 1963, Soape came into Mary's Bar in Sahuarita and struck up a conversation with Davis. In the course of the conversation, Soape asked Davis about getting a girl. Davis shortly thereafter spoke briefly to Sims who left the bar and returned with Marchman. She went over to Soape and told him the price would be $5.00. Soape then went with her in an automobile belonging to Sims to the house in which she and Sims lived. Afterwards, as they were returning to the bar, Soape suggested to Marchman that they go to Nogales, Mexico, a distance of about 45 miles. She told Soape that she did not have a driver's license and, in effect, that it would be necessary to get a driver for the automobile.

Marchman saw Sims and told him about Soape's desire to go to Nogales. As the three were preparing to leave, Davis walked past them and Sims called to him and asked him to go to Nogales with them. The four, Sims, Davis, Marchman and Soape then started out on the highway which would take them Nogales. Sims and Davis were in the front seat, Sims on the left-hand side driving the automobile. Soape and Marchman were in the rear seat, Soape seated behind Sims and Marchman behind Davis.

A short time after leaving Sahuarita, the car seemed to stall and Sims and Davis got out. Sims raised the hood and said to Davis, out of the hearing of Marchman and Soape, 'Let's roll this fellow,' and Davis said, 'Okay,' and they then re-entered the car. After a few miles, Sims, without saying anything, turned off the highway onto a dirt road. Soape immediately asked where they were going, whereupon Davis struck him over the head with a cotton spinner, either stunning him or rendering him unconscious. Sims then stopped the car, got out and opened the rear door. He pulled Soape from the back of the car onto the road. While Soape lay on the road, Sims kicked him in the back of the head. Sims then dragged Soape a short distance into a barley field.

Davis testified:

'Q What did you do, Mr. Davis, after getting out of the car yourself?

'A I went out to the barley field.

'Q Did you do anything before reaching the barley field?

'A No.

'Q What did you do when you reached the barley field?

'A I went over to where Mr. Soape was laying and took his watch off of his arm.

'Q Where was Mr. Sims at this time?

'A By Mr. Soape's body.

'Q What did you observe him doing, if anything?

'A He was handing a wallet to Miss Marchman.

'Q Did you see where Mr. Sims got the wallet?

'A No.

'Q What did you do with Mr. Soape's watch?

'A Gave it to Mr. sims.' Georgia Mae Marchman testified:

'Q * * * Did you see Mr. Sims do anything else when he was with the body in the field?

'A He turned him over.

'Q Did he do anything else that you saw?

'A Yes.

'Q What?

'A He went in his back pocket.

'Q And did you see what he did there?

'A He taken something out.

'Q How do you know that?

'A Because he called me and told me to take this and hide it.

'Q What was it, do you know?

'A It was a wallet.

'Q Did you see this?

'A I saw it.

'Q What did you do with it?

'A I put it in my bosom.'

Sims argues that Davis and Marchman were accomplices whose testimony must necessarily be corroborated under A.R.S. § 13-136. The statute provides:

'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 the 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.'

The word 'accomplice' is not defined in the statute, but we have repeatedly held that the test to determine whether a witness is an accomplice is whether the witness could be informed against for the same crime which the defendant stands accused. State v. Howard, 97 Ariz. 339, 400 P.2d 332; State v. Miller, 71 Ariz. 140, 224 P.2d 205; State v. Green, 60 Ariz. 63, 131 P.2d 411. Generally, it is said, the test is whether the witness could be charged and convicted of the same crime for which defendant is accused.

It should be immediately stated that without the testimony of Marchman there is no legally sufficient evidence to connect Sims with the offense of Soape's murder for admittedly Davis was an accomplice to the crime of robbery and hence to the felony murder accompanying it. The problem implicit in the statement of the foregoing facts is the legal effect to be given to Marchman's acceptance of Soape's wallet from Sims, this being her only connection with the robbery. She testified on direct examination:

'Q Now Georgia, when you were in the car going down the Nogales Highway, did you know that the car was going to turn off to the left?

'A No.

'Q Did you know what Mr. Sims or what Nogales [Davis] were going to do?

'A No.

'Q. Did you have any conversation with them at all about what was going to happen?

'A No.

'Q Did you know that Mr. Soape, the white man, was going to be hit?

'A No.

'Q Did you know that anything was going to be taken from him?

'A No.' She testified on cross-examination:

'Q Now you said when Sims and Davis were under the hood they seemed to be working on the engine. Is that right?

'A I said they was under the hood. I don't know what they were doing.

'Q What did you think they were doing?

'A Well, if the car stopped I figured they was fixing something.

'Q And you could hear them talking but you couldn't actually hear what they said. Is that right?

'A I couldn't hear them talking. I didn't say they were talking. I said they were under the hood.

'Q Well, could you hear them talking?

'A I didn't hear them say anything.

'Q Now understand this, Georgia. I am not asking you whether you understood what they said; I am simply asking if you heard them talking.

'A I didn't hear them say anything.'

Unquestionably, in the absence of preconcert, the mere presence of a person at the time and place of a crime does not make an aider, abettor or principal. United States v. Williams, 341 U.S. 58, 71 S.Ct. 595, 95 L.Ed. 747; People v. Hill, 77 Cal.App.2d 287, 175 P.2d 45; People v. Barnes, 311 Ill. 559, 143 N.E. 445; Johnson v. State, 227 Md. 159, 175 A.2d 580; State v. Johnson, 57 N.M. 716, 263 P.2d 282; Moffett v. State, 151 Tex.Cr.R. 320, 207 S.W.2d 384; James v. State, 144 Tex.Cr.R. 126, 161 S.W.2d 285. The Court, in James v. State, summarized our understanding of the principle here applicable:

'The mere presence of appellant when the soldier struck Mr. Locklar and rendered him unconscious in the absence of previous agreement to rob him, in the absence of aid or encouragement to the soldier in his act of violence, in the absence of knowledge on appellant's part of the soldier's intent, would not render appellant guilty of robbery, however reprehensible his conduct may have been in subsequently taking or participating in the taking of Mr. Locklar's property.' 161 S.W.2d at 289.

Cf. State v. Bearden (Sept. 29, 1965) 99 Ariz. 1, 405 P.2d 885, and State v. George, 95 Ariz. 366, 390 P.2d 899.

Nor does the mere receipt of stolen property render the receiver an accessory after the fact to a robbery notwithstanding that there was knowledge that the property was stolen. Smith v. State, 229 Ind. 546, 99 N.E.2d 417, and authorities collected and cited. The weight of authority is that a receiver of stolen property, knowing it to have been stolen, is not an accomplice whose testimony must be corroborated to sustain a conviction of theft, burglary or robbery. State v. Bowman, 92 Utah 540, 70 P.2d 458, 111 A.L.R. 1393, and annotation 1398. While we have not passed on the question of whether the receiver of stolen property is an accomplice to the theft, we have twice answered the converse, holding that the thief is not an accomplice of the receiver of stolen property. Reser v. State, 27 Ariz. 43, 229 P. 936; Leon v. State, 21 Ariz. 418, 189 P. 433, 9 A.L.R....