Stevens v. State

• Decision Date: 02 February 1914
• Parties: STEVENS v. STATE
• Court: Arkansas Supreme Court

163 S.W. 778

111 Ark. 299

STEVENS v. STATE

Supreme Court of Arkansas

February 2, 1914

Appeal from Independence Circuit Court; R. E. Jeffery, Judge reversed.

Judgment reversed and cause remanded.

Oldfield & Cole, for appellants.

1. There was substantial evidence sufficient to submit to the jury whether Hulsey was an accomplice, so as to require corroboration. Kirby's Dig., § 2384; 36 Ark 117-126; 50 Ark. 544; 64 Id. 250; 75 Id 540; 105 Id. 19; 42 S.W. 301; 62 S.W. 749; 26 Id. 829; Kirby's Dig., § 7754.

2. The officer, a deputy sheriff, was guilty of a misdemeanor. Kirby's Dig., § 7765; 43 Ark. 367-371. His testimony required corroboration. 12 Cyc. 188, note 56.

3. 81 Ark. 173, can be distinguished from this case. The facts are different.

Wm. L. Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.

1. The offense is sufficiently described as "the crime against nature, committed either with a human being or a beast." 2 McClain on Cr. Law, 316; 4 Bl. Com. B. 15; 105 Mass. 536; Kirby's Dig., § 2049; McClain, Cr. Law, § 1153, note 1.

2. Hulsey was not an accomplice. 36 Ark. 117; 50 Id. 534; 51 Id. 115; 96 Id. 13.

OPINION

SMITH, J.

Appellant was convicted of the crime of sodomy, alleged to have been committed upon a certain beast, towit, a mare. Of his guilt there can be no question, if one Thomas Hulsey, a witness for the State, is to be believed. This witness testified that he caught appellee in the very act of intercourse, and his testimony is such that he is said to be an accomplice, and this appeal questions only the action of the trial court in refusing to submit that question to the jury under proper instructions. This witness testified that he watched appellant have intercourse with the mare; that he was a deputy sheriff at the time but forgot that fact; that he promised appellant he would not tell what he had seen, and that he did not voluntarily tell it; yet it appears that he told it to some neighbor in confidence, and the report "spread like wild fire," as the witness said; and a grand juror, who resided in that community, caused Hulsey to be summoned before that body, where Hulsey disclosed what he had seen, and an indictment was returned on his evidence. The mother of the appellant testified that Mr. Hulsey sent her word to have appellant leave the State, and go where he could not be found. Hulsey did not admit sending this message to Mrs. Stevens, but he admitted that he had suggested to a Mr. Jones that, if appellant's mother sent him away that he probably would not be followed up, and Hulsey also said to Jones that if appellant was gotten out of the country "we would keep a prosecution down." The jury might have found from the evidence that Hulsey witnessed the commission of the crime, and agreed with appellant to conceal the facts, and would have done so, had not some one betrayed his confidence and given publicity to the matter, and that thereafter, when he knew he had given evidence on which the grand jury had probably returned an indictment, he undertook to communicate that fact to appellant, to the end that he might flee and thereby escape prosecution. The appellant was about seventeen years old at the time of his trial.

Three instructions on the question of the corroboration of an accomplice were asked, and all were refused, and no instruction on that subject was given. The first and third instructions requested by appellant read as follows:

"1. If the jury believe from the evidence that the witness, T. W. Hulsey, after the commission of the crime charged, and with a full knowledge that the crime had been committed, concealed it from the magistrate, they will find that he is an accomplice, and that a conviction can not be had upon his testimony, unless they further find that his testimony is corroborated by other evidence tending to connect the defendant with the commission of said crime; and the corroboration is not sufficient, if it merely shows that the offense was committed and the circumstances thereof; and, if the jury so find, they must acquit."

"3. If the jury find from the evidence that the witness, T. W. Hulsey, after testifying before the grand jury, and believing that an indictment had been found, and at the time that he was deputy sheriff made communication to the defendant to procure his escape, you will find that he is an accomplice, and that a conviction can not be had upon his testimony, unless you further find that his testimony is corroborated by other evidence tending to connect the defendant with the commission of said crime; and the corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof, and if the jury so find they may acquit."

It will be observed that instruction No. 1 employs substantially the language of section 2384 of Kirby's Digest on the subject of the corroboration of the evidence of an accomplice.

There is a conflict of authority as to whether an accessory after the fact is an accomplice, but the decisions of this court are to the effect that he is. Polk v. State, 36 Ark. 117; Hudspeth v. State, 50 Ark. 534, 9 S.W. 1; Edmonson v. State, 51 Ark. 115, 10 S.W. 21.

Section 1562 of Kirby's Digest defines an accessory after the fact as follows:

"An accessory after the fact is a person who, after full knowledge that a crime has been committed, conceals it from the magistrate, or harbors and protects the person charged with or found guilty of the crime."

In the various decisions of this court in which it has been necessary to define an accomplice, the definition given by Justice EAKIN, in the case of Polk v State, 36 Ark. 117, has been approved. That definition was "One who in any manner participates in the criminality of the act, whether he is considered in strict legal propriety as principal in the first or second degree, or merely as an accessory before or after the fact." That definition has been frequently approved, and was approved in the case of Hudspeth v. State, 50 Ark. 534, 9 S.W. 1, but in applying that definition to the facts in the Hudspeth case Mr. Justice BATTLE said: "It would have been better for the court to have instructed the jury that, if they believed from the evidence that George Watkins was murdered, and that Rebecca Watkins participated, aided, abetted or assisted in the killing, or, not being present, advised or encouraged the killing, or, with full knowledge that he had been killed, concealed it from the officers authorized to issue warrants for the arrest of the guilty...