Opinion
Opinion delivered September 22, 1930.
1. CRIMINAL LAW — ACCOMPLICE DEFINED. — An accomplice is one who could himself be convicted of the crime charged against the defendant either as principal or accessory. 2. CRIMINAL LAW — JURY QUESTION. — Whether a witness in a grand larceny case was present and participated in stealing an automobile as an accomplice hem for the jury under the evidence. 3. CRIMINAL LAW — CORROBORATION OF ACCOMPLICE. — The testimony of an accomplice must be corroborated by the substantive testimony of other witnesses tending to correct defendant with the crime charged. 4. CRIMINAL LAW — CORROBORATION OF ACCOMPLICE. — Evidence held sufficient to corroborate the testimony of an accomplice in a prosecution for grand larceny.
Appeal from Hot Spring Circuit Court; Thomas E. Toler, Judge; affirmed.
W. D. Swaim, for appellant.
Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
STATEMENT OF FACTS.
Leonard Yates prosecutes this appeal to reverses judgment of conviction against him for the crime of grand larceny.
According to the evidence for the State, a Ford touring car, worth a hundred dollars, was stolen from J. R. Kratzmyer in Hot Spring County, Arkansas, about two o'clock in the nighttime on or about the 5th day of March, 1930. Mr. Kratzmyer was lying across the bed with his clothes in looking after his wife who was sick, and heard the sound of a moving car. He thought the car was his by the rattle of it, and, upon examination, found that his car had just been taken from the shed in which it was kept. It was too dark for him to see the persons who were in the car as they drove it away, but an examination showed him that there were tracks of four different persons near where the car had set. One of the tracks appeared to be that of a crippled person walking with a cane or crutch. When the car was returned to him by the sheriff the next day, the sheriff had in charge Buster Yates and a crippled person. The residence of Kratzmyer was near the town of Donaldson in Hot Spring County; and on the same night some canned goods and other groceries were stolen from a store there.
Chester Benson was the principal witness for the State. According to his testimony, on the night of March 5, 1930, Buster Yates, Leonard Yates, Roy Cook and himself, and James Foster, a negro and Fred Taylor, escaped from jail in Malvern, Hot Spring County, Arkansas. They escaped about 8:30 in the evening, and went south of Malvern and camped at an old mill site near where the parents of the two Yates brothers lived. On the next morning, Buster Yates went to the home of his parents and got breakfast for all the boys. About 12 o'clock in the day, Fred Taylor left them, and they did not see him any more. On that night, Leonard and Buster Yates and Roy Cook went to Donaldson. In something like an hour, Buster Yates came back and took James Foster away with him. Yates said they were going to get a car. Later on in the night, they returned with a car and started in it towards Fordyce, taking the witness with them. They also carried some canned goods which the Yates brothers and Cook and, Foster had brought back in the car. When they got about seven miles from Fordyce about 4 o'clock in the morning, they discovered that they had run out of gasoline. Benson and Buster Yates stayed at the car, and Leonard Yates and Cook went to a filling station to get some gas. While they were gone, T. S. Fisher, sheriff of Hot Spring County, came up and arrested Buster Yates and the witness, who were hiding near the car. The negro, James Foster ran away. The sheriff took Benson and Buster Yates in his car and carried them to Fordyce. After he returned from Fordyce, he took the car and delivered it to the owner.
According to the testimony of T. S. Fisher, he first captured Fred Taylor who told him that the other boys were camping in the woods near Donaldson. The sheriff and his posse then commenced to hunt for these parties. He had been told about the stolen automobile, and could follow its tracks because of the dew being on the ground and the car having one new tire on it. He found the car about six or seven miles before he got to Fordyce. He also found Buster Yates and Chester Benson hiding in the woods near the car. He examined the tank of the car and found that it was empty. There was a sack of canned goods and other groceries in the car. The sheriff carried Buster Yates and Chester Benson to Fordyce, and then came back to where he had first found the car. He examined it again, and found about a gallon of gas had been put in its tank while he had gone to Fordyce. There were the tracks of two persons leading away from the car, but neither of them was that of a crippled person. The sheriff carried Chester Benson and Buster Yates with him when he returned the car to the owner.
Buster Yates and Roy Cook were witnesses for the defendant, and the defendant testified for himself. According to the testimony of these witnesses, Leonard Yates and Roy Cook left them about noon on the next day after they escaped from jail and were not with them any more. They did not have anything whatever to do with stealing the car. They admitted that, after escaping from jail, they all camped at an old mill site near the home of the parents of the Yates brothers, and all remained together there until they separated about noon the next day. They said that Leonard Yates and Roy Cook then loft them for the purpose of catching a freight train and returning to Malvern.
Other evidence will be referred to in the opinion.
(after stating the facts). The only ground relied upon for a reversal of the judgment is that the evidence is not legally sufficient to support the verdict. It is claimed that Chester Benson was an accomplice in the theft of the automobile, and that there is no substantial corroboration of his testimony as required by the statute.
An accomplice is one who could himself be convicted of the crime charged against the defendant, either as principal or accessory. Henderson v. State, 174 Ark. 835, 297 S.W. 836.
Under the evidence adduced, the jury might have found that Chester Benson was present and participated in the theft of the automobile. It is true that he denied having anything to do with the theft of the automobile and said that he was not present when it was taken, but it cannot be said that his testimony in this respect is uncontradicted. According to the testimony of the owner of the automobile, four distinct sets of tracks of persons were found near where the automobile had stood just before it had been stolen. One set of tracks appeared to have been made by a crippled person who walked with a cane or a crutch. According to the testimony of the sheriff, he found Chester Benson and Buster Yates hiding near the automobile where it had stalled in the road for lack of gas. He arrested both of them, and had them in the car with him when he returned the automobile to its owner. The owner of the automobile testified that the sheriff had Buster Yates and the crippled fellow in the car when he returned it to him. From this testimony it might be inferred that Chester Benson was the crippled fellow, and it might also be inferred from the testimony of the owner of the car that the tracks of the crippled fellow found near the car were those of Chester Benson. Hence, if Benson was found to be an accomplice, it was necessary to corroborate his testimony by that of other witnesses tending to connect the defendant with the commission of the crime, and this testimony must be of a substantive character. Middleton v. State, 162 Ark. 530, 258 S.W. 995; and Griffin v. State, 172 Ark. 606, 289 S.W. 765.
This brings us to a consideration whether there is any substantive testimony, independent of that of Chester Benson, tending to connect the defendant with the theft of the automobile. The uncontradicted evidence shows that Chester Benson, Buster Yates, Leonard Yates, Roy Cook, and James Foster and Fred Taylor, all escaped from jail about 8:30 o'clock one evening, and went into the woods near the home of the parents of the Yates brothers. On the next morning Buster Yates went to the home of his parents and got them some breakfast. About noon of that day, Fred Taylor loft the party and later on the day was captured by the sheriff. He told the sheriff about the others being camped in the woods near an old mill site. The owner of the automobile also reported its theft to the sheriff. The sheriff followed the tracks of the automobile down cowards Fordyce, and found it stalled in the road because there was no gas in the tank. He searched in the woods nearby, and arrested Buster Yates and Chester Benson who were hiding there apparently in charge of the automobile. They reported that Leonard Yates and Roy Cook had gone to secure some gas. The sheriff took Chester Benson and Buster Yates in the car with him and went to Fordyce. Upon his return he found some gas had been placed in the tank of the automobile during his absence, and that there were two sets of tracks leading away from the automobile. Neither of these tracks were those of a crippled person. This indicated that the tracks were those of other persons than Buster Yates and Chester Benson, who, as we have already seen, was crippled. Those facts tend to show that these parties had kept together, and all participated in the theft of the automobile. It is true that Buster Yates, Roy Cook and the defendant all testified that they had left the other persons before the automobile was stolen, but the jury might not have believed them. All of the witnesses testified that Fred Taylor left them about noon on the next day after they escaped from jail. As we have already seen, the jury might have found that four persons were present and participated in the that of the automobile. Buster Yates and Chester Benson were arrested near the automobile on the next morning after it was, stolen. It is not shown that any other persons besides Leonard Yates and Roy Cook had been recently with them. Hence, the jury might have found that, notwithstanding their testimony to the contrary, they continued with Buster Yates and Benson and united with them in the theft of the automobile. Therefore, the judgment will be affirmed.