Sweeney v. State

• Decision Date: 03 December 1923
• Docket Number: 28,21
• Citation: 256 S.W. 73,161 Ark. 278
• Parties: SWEENEY v. STATE
• Court: Arkansas Supreme Court

256 S.W. 73

161 Ark. 278

SWEENEY v. STATE

No. 28, 21

Supreme Court of Arkansas

December 3, 1923

Appeal from Randolph Circuit Court; John C. Ashley, Judge; affirmed.

Judgment affirmed.

Schoonover & Jackson, for appellant.

J. S Utley, Attorney General, John L. Carter, Wm. T. Hammock and Darden Moose, Assistants, for appellee.

WOOD J. HART, J., dissenting.

OPINION

WOOD, J.

The appellant was convicted of the crime of robbing Eli Hufstedler of certain moneys in June, 1922. The testimony of Hufstedler was to the effect that, in June, 1922, in Randolph County, Arkansas, the appellant crawled up behind him and one McMullen, with his gun drawn, and commanded witness to put up his hands and give up his money. The testimony tended to prove that appellant obtained from the witness and his companion about $ 172. The witness testified that he had been in the habit of carrying money in a belt on his person. Appellant remarked to witness as follows: "You have more money on you. Where is that belt?" Appellant tore witness' pants open to see if witness had the belt on. Witness was asked to state who knew that he carried money in his belt, and answered, "Clarence Estes knew I carried money in a belt." The appellant objected to the answer to the question and to the refusal of the court to withdraw same from the jury. Witness, over the objection of appellant, was permitted to state that Clarence Estes had known for six months that witness carried money in a belt, and that he had known it up to three weeks before the robbery. The witness said he saw Clarence Estes on the day of the robbery, just before and just after the robbery. Estes lived at Imboden, Randolph County, near Sloan's, on Third Street. Appellant requested the court to exclude the above testimony, which the court refused to do, to which ruling the appellant excepted. Witness had seen appellant and Sam McCoy the Sunday before, but didn't know appellant then. Witness described in detail the manner in which appellant attempted to disguise himself, his dress and certain marks, a scar on his cheek, and positively identified the appellant as the man who robbed witness of his money. Witness stated that he and other parties sometimes went to the place where the robbery occurred for the purpose of gambling. Witness stated that the robbery occurred between nine and eleven o'clock. The witness was asked, on cross-examination, if he had not stated before that it was twenty minutes to twelve o'clock, and answered, "No sir, I said I got home at twenty minutes to twelve." Witness stated that he didn't remember that he stated before that the robbery took place twenty minutes before twelve o'clock. It happened before that time.

Witness McMullen testified that he and Hufstedler were robbed on the day alleged, about twelve o'clock. He could not say positively that appellant was the man, but he looked like the man who robbed them. Another witness stated that he saw the appellant, on the day of the alleged robbery, coming from Cedar Brake, about half bent over, with a blue handkerchief over his face; that he spoke to appellant, and asked him what he wanted. Appellant replied that it was none of his business. Witness followed appellant, and he got faster as witness approached him. Witness positively identified appellant as being the man that he saw. It was some time between eight and nine o'clock in the morning.

Witness Andy Holcroft said that, on the day of the robbery, he saw appellant or a man that looked like him from his eyes up, at Cedar Brake, at Imboden. Witness had started to town, and heard Hufstedler hollering, and ran up to see what was wrong, and there was a fellow standing behind Hufstedler with a gun on him, taking his money. Witness, after describing the appearance of the man he saw, stated that he could not identify the appellant as the man, except his eyes looked natural. Witness stated that the robbery occurred between ten and twelve o'clock. His best judgment was about eleven-thirty. Witness was asked the following question: "If he had not heard Eli Hufstedler say, in private conversation with witness, after the case had been disposed of in the examining court, that the robbery took place within twenty minutes of twelve o'clock?" The State objected to the question, and the court sustained the objection, to which the appellant excepted.

Witness J. A. Baker testified that he saw the appellant two weeks before, near the scene of the robbery, through the cedars, and that when witness and others got up and left he followed them up the creek. Appellant objected to the above testimony of the witness Baker. The court overruled the objection, to which ruling the appellant duly excepted.

Witness Crabtree testified that he was at the examining trial of the appellant and Clarence Estes for the robbery. The trial was had just across the river from Imboden. He saw the appellant that day, and also Clarence Estes. Witness was permitted to testify, over the objection of appellant, that he heard a conversation between Clarence Estes and appellant, on the day of the examining trial, as follows: Appellant said, "Clarence, it is not fair for me to go down there by myself and you get out of this; you ought to go with me." The examining court had just bound appellant over to await the action of the grand jury and had turned Clarence Estes loose. The appellant made the remark in a jocular way. Witness didn't know why he said it. He spoke so every one around could hear him. The appellant duly excepted to the ruling of the court in admitting the above testimony.

J. H. Turner was a witness for the appellant. He testified that he saw the appellant on the streets on the day of the alleged robbery, at Hoxie, between nine and ten o'clock, and saw him again on the streets at Hoxie about 11:40 o'clock. Witness testified that he didn't know how far it was from Hoxie to Imboden. He had gone over the route a number of times. He had driven it in two hours. He didn't know where the cedar brake was--the alleged place of the robbery. Witness, at the time of the alleged robbery, was marshal of the town of Hoxie. Witness was asked the following question: "Basing your answer upon your experience as an officer, and knowing the country as you do, and basing your answer upon your knowledge of the distance from Imboden to Hoxie, and basing your answer upon your knowledge as to the time it would necessarily require to travel over the usual route of travel, by the method of travel known at the time of the alleged commission of this offense, could this defendant have been in the town of Imboden, or at a point from a quarter to a half mile north of Imboden, in that cedar brake, and committed the crime charged against him in this indictment, and been in Hoxie, at the time you saw him there that day?" The court refused to permit the witness to answer the question, to which ruling the appellant duly excepted.

Several witnesses testified on behalf of the appellant, and their testimony tended to establish an alibi. The appellant was a witness in his own behalf, and, among other things, he stated that he didn't know anything about the robbery, and had never heard of it until he was arrested at Jonesboro, Arkansas. He testified as to his whereabouts on the day of the robbery and also where he stayed the night before. On cross-examination he was asked where he lived, and answered that he lived at Truman. He was asked how long he had been at Hoxie, and stated that he had been there for two or three years, off and on, a week or so at a time. Then he would go home to help his father with his crop.

Over the objection of appellant he was also asked the following question: "Q. You are a gambler--you gamble?" Witness answered, "I gamble some, but I am not a gambler. Q. You have been in jail? A. Yes sir, I have been in jail at Walnut Ridge and here." Appellant, over his objection, was then asked, "Anywhere else?" and answered, "Yes sir; at Harrisburg." On redirect examination appellant testified as follows: "Q. The time you were in jail here was when you were charged for this offense? A. Yes sir. Q. And also when you were in jail in Walnut Ridge?" and answered, "Yes sir." Appellant was then asked this question: "What were you in jail for at Harrisburg?" and answered, "I was charged with robbery." He was asked, "Were you acquitted on that charge?" and answered, "Yes sir."

The jury returned a verdict of guilty. The court overruled appellant's motion for a new trial, and entered a judgment sentencing him to the State Penitentiary for a period of three years, from which is this appeal.

The first assignment of error is that the court erred in permitting the prosecuting witness to state that Clarence Estes knew that he had money, and that he carried money in a belt, and that he saw Clarence Estes on the morning of the day of the robbery--just before the robbery and just after--and that Estes lived at Imboden. The appellant also contends that the court erred in permitting the witness Crabtree to testify that, after the examining trial of appellant and Estes, he heard appellant say to Estes, in effect, that it was not fair for appellant to be committed to jail and for Estes to get out; that Estes ought to go too.

There was testimony in the record to the effect that appellant and Estes were on trial before the committing magistrate for this alleged robbery and that the above remarks of the appellant were concerning the result of that trial, the appellant having been bound over to await the action of the grand jury and Estes having been discharged. This testimony was in the nature of a confession by the appellant that Estes was with him in the charge of alleged robbery, and that, if it were fair to bind the appellant to await the...