Terry v. State

• Decision Date: 04 July 1921
• Docket Number: 84
• Parties: TERRY v. STATE
• Court: Arkansas Supreme Court

233 S.W. 673

149 Ark. 462

TERRY v. STATE

No. 84

Supreme Court of Arkansas

July 4, 1921

Appeal from Prairie Circuit Court, Northern District; George W Clark, Judge; affirmed.

Judgment affirmed.

Brundidge & Neelly, for appellant.

The demurrer to the indictment should have been sustained. The statute defines an accessory after the fact to be 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. The indictment charges defendants with concealing the crime. Nothing can be taken by intendment. 94 Ark. 242; 93 Ark. 81; 67 Ark. 308; 43 Ark. 93; 95 Ark. 48; 91 Ark. 5. The indictment is not sufficient. 88 P. 819; 104 A. 525. It does not attempt to follow the language of the statute.

It is not shown that either of the defendants has knowledge of the commission of the crime by Long.

Defendants were not guilty if they concealed the crime because of anxiety for their own safety. 43 Ark. 366; 51 Ark. 189; 66 Ark. 16; 51 Ark. 115.

Defendants were entitled to a trial before a jury of the Northern District of Prairie County. Art. 2, § 10, Const.

The court erred in giving instruction No. 1.

J. S. Utley, Attorney General, Elbert Godwin, Assistant Attorney General, and W. T. Hammock, Assistant Attorney General, for appellee.

The demurrer to indictment was propertly overruled. In 91 Ark. 9, the court declined to follow the construction of the statute given by the California Court.

The proof was sufficient to sustain a finding that defendants had knowledge of the crime.

Defendants' contention that they concealed this crime through fear was submitted to the jury. The verdict is supported by the evidence.

Defendants were tried by a jury from the county in which the crime was committed.

Instruction No. 1 is the law. The conviction of the principal is prima facie evidence of his guilt. 1 R. C. L. §§ 153-4.

OPINION

SMITH, J.

Appellants were separately indicted and tried. The indictments are identical, and charge each appellant with the crime of being an accessory after the fact to the crime of murder in the first degree. They were convicted, and the punishment of each fixed at ten years in the penitentiary. The proceedings at the trial below are so nearly identical that the appeals have been briefed together as a single case.

The indictment against the appellant Terry reads as follows: "The grand jury of Northern District of Prairie County, in the name and by authority of the State of Arkansas, accuse S. A. Terry of the crime of accessory after the fact to murder in the first degree committed as follows, to-wit: The said Robert Long in the county, district and State aforesaid, on the 14th day of February, A. D. 1921, unlawfully, feloniously and with malice aforethought, with deliberation and premeditation did kill and murder one Alfred Oliver, by shooting him, the said Alfred Oliver, with a gun then and there loaded with gunpowder and leaden bullets, and had and held in the hands of him, the said Robert Long; and that the said S. A. Terry, after said crime of murder had been committed, and with full knowledge that the said Robert Long, had committed said crime of first degree murder as aforesaid, did then and there wilfully, unlawfully and feloniously, harbor, protect and conceal said crime as aforesaid, against the peace and dignity of the State of Arkansas."

The sufficiency of this indictment is questioned both on demurrer and by a motion in arrest of judgment.

The indictment against appellant Cornall is identical except the use of his name instead of that of appellant Terry.

At each trial the record of the conviction of Long was read in evidence. The trial of the appellant Terry was had the day after that of Long. Objection was made to the introduction of the judgment of conviction against Long for the reason that Long had three days within which to file a motion for a new trial and sixty days within which to appeal, and that the judgment could not become final until the expiration of that time. Objection was also made and exceptions saved to the action of the court in permitting the attorney who defended Long to testify that there would be no appeal in Long's case. Long was convicted of murder in the first degree and given a life sentence in the penitentiary.

The trial occurred in the Northern District of Prairie County, and in making up the jury jurors residing in the Southern District of the county were accepted. Exceptions were saved to the action of the court in holding these jurors competent.

After the introduction of the record of Long's conviction, the first witness to testify was Long himself. Long was asked if he knew what had become of Alfred Oliver, the person alleged to have been killed by him. Objection was made to this question "because the same is a matter of record evidence, and the record is the best evidence of that fact." In passing upon this objection the court said: "I am going to instruct the jury, gentlemen, when we reach that, that the introduction of that record constitutes a prima facie case of murder in the first degree as against Robert Long, and unless there be testimony contradictory of that record that that is sufficient to establish that allegation in the indictment of the murder of Oliver by Long, the witness now on the witness stand. What else do you want now at this time?"

The State asked witness Long nothing about the circumstances of the killing, but had him relate what had happened after the killing occurred, and a most gruesome story was told. Long was engaged in the illicit manufacture of moonshine whiskey, and after killing Oliver--to whom he referred as the "detective"--he loaded the corpse into a wagon, covered it with quilts and bales of hay, and left his home, where the killing occurred, about dark. He drove to the home of Terry, a distance of about seventeen miles, where he arrived about eleven p. m. He awakened Terry, and as soon as Terry came out where the wagon was advised him that "We have got a detective out here, and I want you to help me secrete him." Appellant Cornall was called on by Terry to assist, and the corpse was loaded into a boat and carried out into a creek and thrown into the water after a large rock had been fastened to the body. Other details were related by Long which, if true, fully warranted the jury in finding that both Terry and Cornall had consciously assisted in the attempt to cover up the evidence of Long's crime. They admit this to be true, but attempt to excuse their conduct by stating that they were coerced and intimidated by Long. That they were asked by members of searching parties if they knew anything about the disappearance of Oliver, and denied that they did. This they also admit, but explain that conduct by saying that they kept silent and denied their knowledge of the crime because Long had stated he would kill them both if they told what they knew, and that his partner, Bridges, would kill them if he failed to do so. They stated that, as soon as Bridges and Long were taken into custody and they no longer feared for their safety, they told what they knew and carried the searching party to the creek where the body of Oliver was found. Bridges himself testified. He was present at the killing, and stated that, after the corpse was put into the wagon, Long got a tow sack, into which he put the blood and brains of the deceased which had been scattered over the floor. This sack and the bloody blankets were burned at Terry's home.

Just before the conclusion of the cross-examination of the witness Long, counsel for appellant Terry asked the witness if he killed Oliver in self-defense. The court sustained an objection to this question, holding that the witness could not express his opinion as to what constituted self-defense, but that he might tell what was done. Thereupon counsel asked the witness, "What was Oliver doing when you shot him?" The following questions and answers then appear in the bill of exceptions: "A. Raising his gun. (The witness then made a motion with both of his hands showing Oliver bringing his shotgun up to his shoulder or bringing it up in a shooting position). Q. Who? A. Alfred Oliver. Q. Who on? A. Me. "

This concluded the cross-examination of the witness, and there was no other effort made to show that the killing of Oliver was justifiable.

Exceptions were saved to the action of the court in giving and in refusing to give a number of instructions.

The objections to the indictment are that it does not charge the appellants with concealing the commission of the offense of murder from a magistrate, nor does it allege that appellants harbored and protected Long, the person charged with its commission, and, further, that the indictment is indefinite in its allegations as to the acts of appellants which constituted the concealment of the crime.

The statute under which the prosecutions were conducted reads as follows: "An accessory after the fact is a person who, after a full knowledge that a crime has been committed, conceals it from a magistrate, or harbors and protects the person charged with or found guilty of the crime." Section 2310, C. & M. Digest.

This court has had frequent occasion to consider this statute, and a number of the cases are cited in the briefs of respective counsel. In the case of Stevens v. State, 111 Ark. 299, 163 S.W. 778, we considered what affirmative action would be required to constitute one an accessory after the fact. We there quoted...