Stout v. State

• Decision Date: 02 June 1924
• Docket Number: 20
• Citation: 262 S.W. 641,164 Ark. 553
• Parties: STOUT v. STATE
• Court: Arkansas Supreme Court

262 S.W. 641

164 Ark. 553

STOUT v. STATE

No. 20

Supreme Court of Arkansas

June 2, 1924

Appeal from Jackson Circuit Court; Dene H. Coleman, Judge; affirmed.

Judgment affirmed.

Gustave Jones, for appellant.

J S. Utley, Attorney General, and John L. Carter, Assistant, for appellee.

OPINION

SMITH J.

Appellant was convicted of possessing a still, and has appealed. The testimony on the part of the State was to the effect that some officers raided an old unoccupied house about eleven o'clock one night, and there arrested appellants, Walter Richards and Walter Rudd. Two other men who were in the house at the time of the raid escaped. The officers found a primitive still in operation in one room, and in another room they found a sixty-gallon barrel of mash about two-thirds full. There was a fire in the stove for the purpose of boiling the mash, and the room smelled of whiskey.

Richards testified that he and appellant owned the still, and they had set it up to try to make some whiskey. They found the mash was not ready to run, so they poured a tubful of it back into the barrel out of which they had poured the portion they attempted to use, and sat down and commenced playing cards, and were so engaged when they were raided. Richards testified that the other men, except appellant, were mere visitors. He also testified that some coal oil was needed to make a light, and that he waited at one Blankenship's house until appellant went to a Mr. Field's house and procured the oil, and, after getting the oil, appellant joined him at Blankenship's house, and they went together to the house where the still was found.

Appellant admitted that he was in the house at the time of the raid, but explained his presence there by saying that he had been to Mr. Field's house to borrow some oil, and, on his return, saw a light in the old house, and just went by to see what the light meant, and, upon entering, he was invited to play cards, and had been so engaged for about two or two and one-half hours when the officers came and made the arrests.

It is insisted for the reversal of the judgment that the court erred in giving an instruction numbered 2 on the subject of the sufficiency of testimony to corroborate an accomplice, and in refusing to give an instruction numbered 2 requested by appellant on that subject.

The instruction given reads as follows: "Now, gentlemen, I instruct you that the defendant could not be convicted on the uncorroborated testimony of the witness Richards, from the fact that the law makes him what is known as an accomplice and the defendant could not be convicted on the uncorroborated testimony of the witness Richards. Before you would be authorized to find him guilty upon any of the testimony of Richards, there should be some other circumstances in corroboration, not necessarily another witness to testify, but the evidence of some state of facts, which you may consider as a corroboration; it must be such a corroboration as the...