Young v. State

• Decision Date: 09 June 1888
• Citation: 8 S.W. 828,50 Ark. 501
• Parties: YOUNG v. STATE
• Court: Arkansas Supreme Court

8 S.W. 828

50 Ark. 501

YOUNG v. STATE

Supreme Court of Arkansas

June 9, 1888

APPEAL from Pulaski Circuit Court, J. W. MARTIN, Judge.

Judgment affirmed.

F. T Vaughan, for appellant.

1. The indictment fails to allege that the person robbed "was put in fear." 1 Whart. Prec. Ind. & Pleas, sec. 410 et seq.; 1 Whart. Cr. Law., sec. 857; 39 Ill. 233; Bish. Dir. & Forms. secs. 931-2, &c.

2. Anthony's and Paine's testimony should have been excluded. The statements made by defendant in this connection, and his acts were induced by a belief that he was to derive a benefit therefrom, viz: "that the robbery would be hushed up." Whart. Cr. Ev., secs. 646, 650-1-3 note 6; 10 Grat., 734; 2 Humph., 39; 5 Cush., 605; Corley v. State, Ante, 305. Without this evidence there was none to sustain the verdict.

D. W Jones, Attorney-General, for appellee.

It was not necessary to allege that Elmore was "put in fear." Mansf. Dig., sec. 1589; 33 Ark. 561; Bish. Cr. Proc., 948.

2. The testimony of Anthony and Paine was competent. The disclosures were voluntary. The disclosure to Anthony was made before he was under arrest. Neither of them gave him any hope, or inflicted upon him "the torture of fear." 19 Ark. 156; 14 Id., 556; 34 Id., 650; 35 Id., 35. See also 28 Ark. 121.

But without the testimony of Anthony and Paine, there was evidence to sustain the verdict.

OPINION

BATTLE, J.

Young was indicted by the grand jury of Pulaski county for robbery. It is alleged in the indictment that he and two others, on the 1st day of July, 1887, in and upon one Aaron Elmore wilfully and feloniously did make an assault, and fifty-eight dollars, describing it, and one hat, of the value of one dollar, and two pocket knives, worth one dollar, of the goods and chattels of said Aaron Elmore, from the person of said Elmore, "by force and against his will, feloniously, forcibly and violently did rob, steal, take and carry away, against the peace and dignity of the state of Arkansas." Young was convicted in the manner and form charged in the indictment. He moved for arrest of judgment and for a new trial, both of which were denied and he appealed.

It is urged that the indictment is insufficient, because it is not alleged therein that Aaron Elmore "was put in fear." But this was not necessary as held by this court in Clary v. State, 33 Ark. 561. To constitute robbery the taking may be by force or a previous putting in fear, and it is sufficient to charge it in either form.

Elmore was robbed in the night, between one and two o'clock, by three persons. It was dark. He did not know their names, and was unable to recognize any of them, except Young, when they were afterwards arrested. Immediately after he was robbed he informed one Paine, an officer, of what had occurred. One Tony Anthony testified, in the trial, that on the next morning after the robbery was committed, Paine told him that "he was on to the fellows that committed the robbery, and, if they didn't put up or whack up with him some of the money they had, he would pull the whole party;" that Paine did not give the names of the persons suspected; that on the same morning, Young and several others were at his, Anthony's house, and he repeated to them what Paine had said; that on the night following, about half past eleven o'clock, Young and two others, who had heard him repeat what Paine said, went to his house and called him out and gave him eight dollars, and requested him to give it to Paine "to hush the robbery up," which he did and told Paine who gave it to him. Appellant moved to exclude this testimony which the court refused to do.

Paine testified that when he arrested Young he asked him who helped him to rob Elmore, and he replied, "Will Allen and Alf. McNair;" that Young then said "he would like to pay a fine and get out of it;" and that he, Paine, made no threats or promises, and offered no inducement to Young to make any confession or admission. Appellant moved to exclude this testimony and the court denied his motion.

Appellant now contends that the court erred in refusing to exclude the testimony of Anthony and Paine because it relates to involuntary confessions and is inadmissible.

The well established rule is, "that confessions of guilt, to be...