Thompson v. State

• Decision Date: 02 October 1944
• Docket Number: 4366
• Citation: 182 S.W.2d 386,207 Ark. 680
• Parties: Thompson v. State
• Court: Arkansas Supreme Court

182 S.W.2d 386

207 Ark. 680

Thompson v. State

No. 4366

Supreme Court of Arkansas

October 2, 1944

Appeal from Greene Circuit Court; Walter Killough, Special Judge.

Reversed.

Bon McCourtney and T. J. Crowder, for appellant.

Guy E. Williams, Attorney General, and Oscar E Ellis, Assistant Attorney General, for appellee.

OPINION

Holt Justice.

A jury convicted appellant, Roy Thompson, of the crime of receiving stolen property, (§ 3144, Pope's Digest), and fixed his punishment at a term of one year in the state penitentiary. From the judgment on the verdict comes this appeal.

The information charged that appellant in "November, 1943, in Greene county, Arkansas, did unlawfully and feloniously receive two Firestone automobile tires valued at $ 60, the same being the property of Fountain Ladd, for the purpose of depriving the true owner of his property therein, knowing at the time that they were stolen property."

The testimony most favorable to the State is to the following effect. Melvin Stewart and Arliss McLean testified that they, together with Odell Simms, on the night of November 27, 1943, drove from Paragould, Arkansas, into Missouri, stole two new Firestone tires and on the same night brought the tires to Paragould, delivered the tires to appellant, and that appellant paid them $ 20 cash for them. These tires were never recovered and were not in evidence. J. F. Ladd testified that two new Firestone automobile tires, 6-16, 4 ply, were taken from his place of business in Missouri in the night-time on November 27, 1943. Odell Simms denied that he had anything to do with theft of the tires.

Stewart and McLean further testified that Odell drove the car and when they returned to Paragould on the night of the larceny of the tires, they were joined by appellant who paid them $ 20 for the two tires and they then went to the home of Chester Thompson, a brother of appellant, and there they all concealed the tires in the hay in the loft of Chester's barn. They further testified that the car used by them was a 1941 Ford coach, in excellent condition, newly painted black, with two aerials, one on each side of the body, and with white side walls on the tires.

Officers testified that they arrested Chester Thompson and, upon taking him to jail, he made a statement to them in which he admitted that the tires were received by Roy Thompson from the accomplices and hidden in his (Chester's) hay loft and that he assisted in their concealment. In explanation of this statement to the officers, Chester testified that he made the statement for the purpose of obtaining his release from custody and to avoid being placed in jail and that he told the officers he would tell the truth when he was put on the witness stand. This was contradicted by the officers. Chester Thompson's statement to the officers was not made in the presence of appellant.

Appellant concedes that the tires in question were stolen by Stewart and McLean in Missouri, but insists that Stewart and McLean were accomplices and that appellant could not be convicted on the uncorroborated testimony of accomplices; that the testimony of Chester Thompson, given in the absence of appellant, was hearsay and without corroborative force.

After a careful review of all the testimony, we have reached the conclusion that there is lacking any substantial evidence, which standing alone and independent of the testimony of an accomplice, tends to corroborate the accomplice and connect the appellant with the crime charged. It is expressly provided in § 4017 of Pope's Digest that "A conviction can not be had in any case of felony upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof."

This court has many times construed this section of the statute, and in one of our most recent cases, (Underwood v. State, 205 Ark. 864, 171 S.W.2d 304) said: "The corroborating testimony required by this statute must be of a substantial character which, of itself and independently of the statement of the accomplice, tends in some degree to connect the defendant with the commission of the crime, although such evidence need not in itself be sufficient to support a conviction. Cook v. State, 75 Ark. 540, 87 S.W. 1176; Brewer v. State, 137 Ark. 243, 208 S.W. 290; Middleton v. State, 162 Ark. 530, 258 S.W. 995; Breed v. State, 198 Ark. 1004, 132 S.W.2d 386; Bennett & Holiman v. State, 201 Ark. 237, 144 S.W.2d 476, 131 A. L. R. 908. Evidence which merely raises a suspicion that accused may be guilty, or which is as consistent with defendant's innocence as guilt is not sufficient. O'Neal v. State, 192 Ark. 1178, 96 S.W.2d 780; Wilson v. State, 190 Ark. 651, 80 S.W.2d 925; Roath v. State, 185 Ark. 1039, 50 S.W.2d 985; 22 C. J. S. 1412, § 812."

While we agree with the State's contention that there is some substantial evidence aside from the testimony of the accomplices that the car used in the larceny of the tires belonged to appellant, we do not think...