Opinion
William B. Howard, Jonesboro, for appellant.
Steve Clark, Atty. Gen., Little Rock, for appellee.
NEWBERN, Judge.
The appellant was charged in separate informations with criminal mischief and conspiracy to commit criminal mischief. He was acquitted with respect to the first charge and convicted of the second. The criminal mischief charge was for the destruction of a helicopter for the purpose of collecting insurance proceeds, and the evidence presented on the conspiracy charge dealt with conspiracy to destroy the helicopter for that purpose. Four witnesses gave evidence connecting the defendant with the conspiracy. The court correctly instructed the jury that two of the witnesses, Edd Conn and Ken Doles were accomplices. They were co-conspirators, and their testimony showed that they had directly participated in the destruction of the helicopter. The court further instructed the jury it was for them to determine whether the other two witnesses, Patricia Miller and Robert Holloway, were accomplices within the meaning of the law. The court then instructed the jury, "(i)f you find that the witness, Patricia Miller, was an accomplice within the meaning of that term as defined to you in these instructions, it would be your duty to acquit the defendant." The omission of Holloway's name from this latter instruction was apparently inadvertent, although the appellant would disagree. This instruction was inconsistent with the immediately previous one which had told the jury they had a duty to determine whether Robert Holloway was an accomplice in addition to that same duty with respect to Patricia Miller. The sole question raised on this appeal is whether the appellant's motion for a directed verdict of acquittal and his motion to set aside the verdict and judgment should have been sustained. The appellant's contention is that, because Holloway and Miller were accomplices, there was no evidence to corroborate the testimony of accomplices Conn and Doles, and thus the conviction is erroneous because of Ark.Stat.Ann., 43-2116 (Repl.1977), which requires such corroboration.
On September 5, 1976, a helicopter owned by Arkansas Aero, Inc., was flown by Doles to a somewhat remote levee and landed. Doles then pushed it over onto its side. Conn, who was present at the scene, and Doles thereafter set the helicopter afire. Their testimony was that the appellant, who was the president and majority stockholder of Arkansas Aero, had agreed to pay Doles $2,000 to destroy the helicopter. Conn had procured Doles to perform this task. Both Conn and Doles were employees of Arkansas Aero.
After the helicopter was turned over, Conn and Doles were unable to find sufficient fuel at or near the site to burn the aircraft. They went to the house where Conn lived with Patricia Miller. Conn went inside where he found the appellant and Miller. Conn explained to the appellant that the helicopter had not yet been completely destroyed, and asked the appellant if he still wanted the destruction carried out, and the appellant said he did. Conn then asked Miller if they had a gasoline can. Miller went to a storage room to search for such a container but returned and said she could not find one. Thereafter, Conn and Doles obtained a container filled with gasoline which they poured on the helicopter, setting it afire and destroying it.
Holloway was the business manager of Arkansas Aero. He was notified that the helicopter had been destroyed on the evening of that occurrence. He was then told by Conn that he, Conn, had accidentally destroyed the helicopter because it had malfunctioned Given the conflict in instructions mentioned above, we do not know whether the jury considered itself at liberty to find that Holloway's testimony could be considered as corroboration of the testimony of Conn and Doles. We find, however, that it would not have been improper for the jury to have considered Holloway's testimony for that purpose. We cannot say that, as a matter of law, he was an accomplice to the conspiracy. He did not obtain knowledge of the scheme until after the conspiracy was complete. Ark.Stat.Ann., 41-707 (Repl.1977), makes it clear that a conspiracy is completed when one of the conspirators "does any overt act in pursuance of the conspiracy." There is no doubt that the overt acts of Conn and Doles had occurred before Holloway obtained knowledge of the criminal scheme. Of course, Holloway thereafter accommodated the appellant by gathering money which was to be used in the plan, and still later he notarized the signature of the appellant on the proof of loss form. Even if these acts were to be considered as ones materially contributing to the conspiracy, at no point in his testimony does Holloway say it was his "purpose" to assure the success of the scheme. Nor do we find any other evidence from which we could conclude that was his purpose as a matter of law. It is clear to us that Ark.Stat.Ann., 41-303 (Repl.1977), provides that in order for one to be an accomplice one must have "the purpose of promoting or facilitating the commission of an offense." See also, Comment, 31 Ark.L.Rev. 100 (1977). There is at least a question of fact remaining whether Holloway gathered the money because he was merely following the orders of the appellant, who was obviously his superior in the company, or seeking to promote or facilitate the conspiracy. At least at one juncture in his testimony Holloway said his refusal to place money in Doles' desk drawer was because he did not want to be involved in the matter and did not want Doles to know he knew of Doles' involvement. Notarization of the proof of loss form was, of course, only a ministerial function, from which we could not impute a "purpose" as a matter of law, and it must be remembered that the initial report of loss to the insurer was made by Holloway before he even had knowledge of the conspiracy.
Even if, however, we considered ourselves bound to the conclusion that we could only find corroborative evidence in Ms. Miller's testimony, because of the court's instruction which left out Holloway and told the jury they must acquit if they found Miller to be an accomplice, we would still have to affirm. In his brief and upon oral argument of this case, the appellant's counsel emphasized the following testimony, which he elicited upon cross-examination of Ms. Miller, as being that from which we must conclude she was an accomplice as a matter of law: Q. All right. Now, you have told us here today that they came in there where you were living with Edd Conn without the benefit of clergy, and they had a discussion about burning the airplane, and that Edd Conn requested you to get a gas can. Is that true?
A. Yes, sir.
Q. And you understood that he was requesting you to get the gas can for the purpose of burning the airplane in question and collecting from the insurance company, didn't you?
A. Yes, sir.
Q. All right. And at Edd Conn's request, you did go to look for a gas can to furnish to him for that purpose, didn't you?
A. Yes, sir.
Q. And the only reason that you actually didn't get him a gas can to burn it down is because you couldn't find it. And that is the truth, isn't it?
A. Yes, sir.
Q. You fully intended to get a gas can to be delivered to Edd Conn to be given to Doles for the purpose of burning this aircraft and collecting the insurance on it; didn't you?
A. Yes, sir. (R. 469-470)
RE-CROSS EXAMINATION
Q. Just one other question. You recognize without question that Edd Conn was to be part and parcel of this scheme by contacting Doles, arranging for Doles to commit this crime and seeing that it was perpetrated, didn't you?
A. Yes, sir.
Q. And you knew that before the evening on which you tried to get the gas can to help the project along, didn't you?
A. Sir, I had begged Edd not to get involved in any way.
Q. Would you answer my question, please, ma-am?
A. Yes, sir.
Q. You knew these things when you tried to get the gas can to help the project along, didn't you?
A. Yes, sir. (R. 473)
Although the appellant's counsel insists that the answers to these questions make it indisputable that Ms. Miller's purpose was to promote or facilitate the commission of the offense, we cannot agree. Although the questions referred to "purpose," they did not make clear whose purpose was being referred to. Many of the questions are multiphasic, and it is difficult to know which phase the witness was answering. For example, when the appellant's counsel said "(y)ou knew these things when you tried to get the gas can to help the project along, didn't you?" and the witness answered "(y)es, sir." We believe she was only reaffirming that she knew of the scheme when she looked for the gas can. In response to the previous question which was "(a)nd you knew that before the evening on which you tried to get the gas can to help the project along, didn't you?" the witness explained she had not wanted Conn to get involved in any way. We cannot help but notice how the witness recoiled when counsel suggested she tried to "help the project along." There is at least a question of fact whether Ms. Miller wanted the scheme to succeed when she made her unsuccessful attempt to find a gas can. From her testimony, we find it much more likely that her willingness to look for a gas can was simply motivated by her desire to accommodate her living companion rather than for the purpose of promoting or facilitating the crime in which she so clearly did not want him to be involved.
Neither the appellant nor the appellee has cited any case purporting specifically to interpret the language of the relatively new statutory description of "accomplice." We find, however, that some of our supreme court's decisions with respect to this matter are helpful because the principle involved in allowing the jury to determine, as a matter of fact, whether one is an accomplice, seems not to have changed with the adoption of Wilson v. State,
DuBois v. State, Jackson v. State,Finally, we must note the appellant's counsel's remark during argument that the best way to ascertain the "purpose" of an actor is to look to the logically predictable result of his act. Also we must note counsel's insistance that the mere doing of an act which furthers the crime charged makes one an accomplice if one had knowledge that the crime, in this case the conspiracy, was afoot. Had our General Assembly seen fit so to define the term "accomplice," surely it would have done so. The Model Penal Code from which much of our code was developed contains, in addition to the language very similar to our statutory definition, language which makes an accomplice of one who performs an act which "substantially facilitates" the commission of a crime, with knowledge that the crime is in progress or about to be committed. ALI, Model Penal Code, § 2.04(3) (Tent. Draft, 1953). The drafters of our code omitted this latter provision, thus, our General Assembly must have intended that for one to be an accomplice one must have the "purpose" described in the statute and that mere knowledge accompanying some act which tends to further the offense will not suffice.
Affirmed.
WRIGHT, C. J., and HOWARD, J., dissent.
PENIX, J., did not participate.
WRIGHT, Chief Judge, dissenting.
I reluctantly dissent from the majority opinion. In my view the judgment of conviction should be reversed for lack of corroborating evidence of the testimony of the accomplices tending to connect appellant with the crime of criminal conspiracy.
The common law permits the conviction of a defendant upon the testimony of an accomplice. However, Ark.Stat.Ann. (Repl.1977) § 43-2116, an ancient statute, prohibits a felony conviction upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the crime. The appellant moved for a directed verdict on the ground there was no evidence connecting appellant with the crime except the testimony of accomplices. The motion was overruled, and in my opinion should have been granted.
The court instructed the jury that if it should find the witness Patricia Miller was an accomplice is should acquit the defendant. However, the evidence is undisputed that Patricia Miller hunted for a gasoline can which she knew was to be used to further the scheme and plan of Edd Conn and Kenneth Doles to burn an aircraft for the purpose of collecting insurance therefor. The appeal is from Cate's conviction as a participant in the conspiracy with Conn and Doles to burn the aircraft to collect insurance.
Ark.Stat.Ann. (Repl.1977) § 41-303 provides that a person is an accomplice of another in the commission of a crime if he, "agrees to aid or attempts to aid another in planning or committing it." It is clear from the evidence the witness Miller attempted to aid in the criminal conspiracy for which appellant was convicted of agreeing to burn an aircraft for the purpose of collecting insurance. The undisputed evidence of Miller's actions and purpose is not susceptible to any other reasonable interpretation. There was no conflict in the testimony as to the role of Ms. Miller in the conspiracy. Therefore, the court had a duty to rule the witness Miller to be an accomplice as a matter of law and direct a verdict of not guilty. DuBois v. State, 254 Ark. 543, 494 S.W.2d 700 (1973), Bright v. State, 212 Ark. 852, 208 S.W.2d 168 (1948). It appears the better rule would be to permit conviction upon the testimony of an accomplice, but to provide that the jury should be instructed to weigh the uncorroborated testimony of an accomplice with great caution. This is the common law rule, the rule followed in federal cases and in many states. In Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949) the court stated:
Moreover, in federal practice there is no rule preventing conviction on uncorroborated testimony of accomplices, as there are in many jurisdictions, and the most comfort a defendant can expect is that the court can be induced to follow the "better practice" and caution the jury against "too much reliance upon the testimony of accomplices".
A relaxation of the strict Arkansas statutory requirement of corroboration of the testimony of an accomplice as a prerequisite to conviction of a felony appears desirable, but such change would require legislative action.
Even though I do not like the result in this case, I would reverse.
HOWARD, J., joins in this dissent.