Sweatt v. State

• Decision Date: 20 December 1971
• Docket Number: No. 5629,5629
• Citation: 473 S.W.2d 913,251 Ark. 650
• Parties: Jimmy Alfred SWEATT, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 913

473 S.W.2d 913

251 Ark. 650

Jimmy Alfred SWEATT, Appellant, v. STATE of Arkansas, Appellee.

No. 5629.

Supreme Court of Arkansas.

Dec. 20, 1971.

Pollard, Bethune & Caveneau, Searcy, for appellant.

Ray Thornton, Atty. Gen., Robert H. Crank, Asst. Atty. Gen., Little Rock, for appellee.

GEORGE ROSE SMITH, Justice.

The appellant was convicted of selling or bartering LSD, a hallucinatory drug, to Robbie White, a 14-year-old boy. The jury fixed the punishment at confinement in the penitentiary for five years. For reversal the appellant argues, primarily, that the proof does not support the conviction and that the court erred in allowing the State to introduce proof of other offenses.

Robbie White's testimony was sufficient to sustain the verdict. He testified that he bought an LSD tablet from Sweatt for $3.00, on credit (though he never paid the debt). At the time Sweatt told him that the strength of the LSD tablet was 300 micrograms. Robbie said that when he took the tablet it caused him to 'go on a trip' for about a day. He also said that his vision was messed up, he couldn't do things right, and he felt dead. The jury was justified in concluding from Robbie's testimony that Sweatt said that the tablet was LSD and that in fact it was.

Upon the second point the appellant is right in his contention that the court erred in permitting the State to prove other offenses committed by Sweatt. The court allowed the prosecution to introduce much testimony showing that Sweatt had had marijuana at his apartment and had sold it. In fact, as in Moore v. State, 227 Ark. 544, 299 S.W.2d 838 (1957), the other offenses were proved in more detail than was the charge actually being tried.

Our basic rule was stated in Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954): 'The State is not permitted to adduce evidence of other offenses for the purpose of persuading the jury that the accused is a criminal and is therefore likely to be guilty of the charge under investigation. In short, proof of other crimes is never admitted when its only relevancy is to show that the prisoner is a man of bad character, addicted to crime.' In the case at bar the issue for the jury was whether Sweatt had sold LSD to Robbie White. Proof that Sweatt had sold marijuana on other occasions had no relevancy except to show that Sweatt had dealt in drugs before and hence was likely to have done so again. That is precisely the type of proof that must be excluded. If Sweatt was guilty of other crimes, then, as we said in Alford, 'each may be examined separately in a court of law, and punishment may be imposed for those established with the required certainty. In this way alone can we avoid the elements of unfair surprise and undue prejudice that necessarily attend trial by accusation in place of trial upon facts demonstrated beyond a reasonable doubt.'

The appellant also argues that the court erroneously allowed the prosecutor to ask leading questions and to adduce hearsay testimony to explain the absence of a witness. Since those matters are not apt to arise upon a new trial we find it unnecessary to discuss them.

There is one other matter, however, that must be passed upon, in view of the necessity for a retrial. The court instructed the jury that Robbie White was an accomplice and that therefore his testimony alone, without corroboration, could not support a conviction. Ark.Stat.Ann. § 43--2116 (Repl.1964).

The giving of that instruction was error, for Robbie White was not an accomplice in the selling of LSD. (There is no proof of the alternative charge, that of bartering LSD.) In Henderson v. State, 174 Ark. 835, 297 S.W. 836 (1927), we discussed at some length the general principles governing the determination of who is and who is not an accomplice. Basically, an accomplice is one who commits or aids in the commission of the crime with which the defendant is charged. From that opinion: 'An accomplice is one who could, himself, be convicted of the crime charged against the defendant, either as principal or accessory. That means convicted of the crime being investigated . . .. The crime being investigated in this case was the crime of possessing a still and not the manufacture of liquor. The witness Goff was an accomplice in the manufacture of liquor, because he did work at the still and thereby aided and assisted in the manufacture of the liquor. But manufacture is a distinct crime from possession, and he did nothing, as far as the record shows, that indicated that he had any possession or control or that he did anything else except to work as a servant for the appellant.

'It is not sufficient that a witness was engaged with the person charged in an offense other than the one for which he is being tried, but the evidence, in order to make him an accomplice, must show that he aided and assisted in the particular crime charged and being investigated, and not in some other crime. (We then commented upon a Kentucky case in this language:) The person who bought the lottery ticket violated the law, but the crime of purchasing a lottery ticket was a different crime from selling a lottery ticket.'

It is uniformly held that one who buys narcotics, intoxicating liquor, or other contraband is not an accomplice in the sale of the article, for obviously he is not selling to himself. As the California court rather graphically put the distinction, to be an accomplice one 'must stand in the same relation to the crime as the person charged therewith and must approach it from the same direction.' People v. Poindexter, 51 Cal.2d 142, 330 P.2d 763 (1958). A buyer and a seller certainly approach the transaction from opposite poles.

Wharton states the fundamental rule with respect to buyer and seller and then goes on to give a practical basis for the doctrine: 'The person to whom narcotics are sold is not an accomplice of the defendant who is charged with selling the narcotic. Nor is purchaser of liquor an accomplice of a defendant being prosecuted for selling such liquor. * * * The reason for holding that the purchaser is not the accomplice of the seller is that the purchaser, if guilty of any crime, is guilty of a crime distinct from that for which the seller is being prosecuted. As a practical consideration, any other conclusion would render it almost impossible to secure the conviction of a person charged with illegally vending intoxicating liquors, unless such sale was made in the presence of disinterested witnesses.' Wharton's Criminal Evidence, § 456 (12th ed., 1955).

Directly in point are our cases holding that the purchaser of liquor being unlawfully sold is not an accomplice of the seller, where the latter is being charged with the unlawful sale. Williams v. State, 129 Ark. 344, 196 S.W. 125 (1917); Wilson v. State, 124 Ark. 477, 187 S.W. 440 (1916). We can find no significance in the fact that, when those two cases were decided, the buyers were actually guilty of no offense in making the illegal purchases. Later on, possession of such intoxicating liquor was also made on offense, C. & M. Digest § 6169 (1921), but we adhered to our rule that the purchaser was not an accomplice in the sale. Rich v. State, 176 Ark. 1205 (mem.), 2 S.W.2d 40 (1928).

We should mention two other suggestions that were made during the discussion of the case at our conference. First, the governing statute makes it unlawful for a person to use, possess, sell, exchange, give, barter, or otherwise dispose of LSD. Ark.Stat.Ann. § 82--2110 (Supp.1969). It was suggested that Robbie White was an accomplice because he was guilty of a separate offense denounced by the same statute: that of possessing LSD. We find no merit in that suggestion. As long as the offenses are separate, and as long as the asserted accomplice is not guilty of the principal offense on trial, it makes no difference that the accomplice was guilty of a different offense defined by the same statute. People v. Stone, 89 Cal.App.2d 853, 202 P.2d 333 (1949); State v. Tennyson, 212 Minn. 158, 2 N.W.2d 833, 139 A.L.R. 987 (1942).

Secondly, it was suggested that we should regard as controlling precedents our cases holding that one who receives stolen property is an accomplice of the thief. We adopted that view solely because we had previously held that one who is an accessory after the fact is an accomplice. Hence we found it necessary to hold that the receiver of stolen goods was an accomplice of the...