Opinion
[15 Ark.App. 291-A] CORBIN, Judge.
In our original opinion, 15 Ark.App. 283, 692 S.W.2d 775, we did not consider appellant's argument that the trial court erred in submitting the issue of the accomplice status of witness Ricky Parks to the jury. Appellant correctly points out in his petition for rehearing that this issue was raised and should be considered.
Appellant offered AMCI 402 which would have instructed the jury that Parks was an accomplice as a matter of law and that his testimony required corroboration in order to convict appellant. The court refused this instruction and gave AMCI 403 which instructed the jury that if it found Parks to be an accomplice his testimony had to be corroborated in order to convict appellant.
[15 Ark.App. 291-B] Parks testified that he didn't know appellant was going to rob a store, that appellant often talked along those lines but never did anything, and that his knowledge of the robbery came only after it had been committed. This testimony was sufficient to put Parks' status as an accomplice in dispute. The standard instruction on corroboration when the accomplice status of a witness is in dispute must be given when the witness' status as an accomplice is in dispute. One's status as an accomplice is a mixed question of law and fact and the issue must be submitted to the jury where there is any evidence to support a jury's finding that the witness was an accomplice. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981). The trial court should not instruct the jury that a witness is an accomplice as a matter of law if there is any dispute on that point. See, Johnsons&sKeeling v. State, 259 Ark. 773, 536 S.W.2d 704 (1976); Odom v. State, 259 Ark. 429, 533 S.W.2d 514 (1976). In the case at bar Parks' status as an accomplice was clearly disputed. Thus, the trial court correctly instructed the jury and we find no merit to this point.
Not knowing what evidence will be submitted on remand we will not anticipate what instructions may be proper if the case is retried.
CRACRAFT, C.J., and COOPER, J., agree.