f' ARK.] BROWN V: STATE. 863 • ; " BROWN VH8TATE; . ". ,Opinion delivered N;ovember ,16, 1925.; 1. CRINI N AT.: . LAW t= EORROBORATION OF TESTIMONY OF _AECOMPLICE.:-:— Testimony, of•the wife of an , accompliCe held a sufficient ,cOrrol:p-ration of ti . ;e, testimony ! of such accomplice if she herself was not likeWiSe aCCOmPlice. 2." CRIMINAL I ;AW--INSTRECTION AS TO ACCOMPLICE: Lin a prosecu-• tion fot : bnrglary, an instruction which submitted the . question whether . the • wife of an accoMplice was also: an , acComplice held sufficient to submit the issue. •ApPeal from , Calhoun Circuit Court•; W. ; A: .A'peer, Judge'; affirmed. , ' ! - J. &McKnight, for appellant. '
H. W. Applegate, Attorney General, ;and' 'Darden Moose, Assistant; fOr appellee.. • SmiTH, J. Appellant, Ackie B. Brown;:and one Eng-. land,thinn were jointly indicted for the criine nf burglary;' alleged,to have been committed by breaking. and entering a store of one Charlie McLendon. '
864 BROWN V. STATE." [169 Bann . confeSsedthis participation in the .crime; and at the)time 'of. :appe1lant 7 s :trial, had been , sentenced, to the; penitentiary: die. teStifidel.:that , he. and ,appellant broke into: and: 'entered • the. store and , todk a sack of , flour,: soine, sausage, aiwidtch,.Some poeket.kniVeS and, some.bacon, and Carried thesethhigs to the 'home of, ;the Witnes§: . and placed themin. al trunk, Whieh :they: took into:a . thicket and; hid., This, witness testified that:his !wife. went with , ,him, and, appellant .to:a . place. about-fifty yards from., the: store, where she stopped, and ,.that hiwf . e did not know , :what he. and, appellant had planned . to do ;and was: not present. at ,:the time, : the , store: . was broken ., into and ..entered, although:Ile admitte . d she, returned hoMe with them: and: Ar as l. posent. y vhqn, the- ,stolen aytieles were placed in the,trunk: . ,-;., . , • Rosie Bunn, the wife of England Bunn, ,Was, also called as a witness,. and she testified that she went down the road, toward the store, with her husband and appellant, but that she did not know they intended to rob the store until after they had done so.,.. On her cross-examination she admitted s she was only , about; twenty feet from the place where -tibe . '§tore *as' entered, btit'she' 'alSO testified that :the .did 'not :know. ; What • her . , husband . 'and appellant had iplarined l te tintiPafter they • had entered' the, store and Were CarrYink did Stblen ' articleS tO her England Bunn was, , , of , . conrse„., an accomplice,, and the corroboration, othis testithony required.!by. , , 3181, Grawfbrd . '& : MoseS . " Digest, depends On-that•of , his . , wife, as the other testimony in the - 'ease ' merely -sheWed the commission' of :Old:crimp and the„,circumstances :thereof. The testimony is sufficient to sustain the conviction if Rosie Bunn was not herself an aoddlnplice hi the commission .orthe. ' crircke. • . •, . . . : The court submitted to the jury; . under • correct instritotions i :theq-deStion i Whether 'Rosie Bunn was in . - fact an a Ce'empliee, und 'told the , j u ry that,. if they:found' the' facts , so ,to . lid,: her testimOny could 'not be • consid , • ered as corroboration of thatot her husband: • •
/ ARK.] BROWN .v. STATE. 86-5 I Appellant asked only one -instruction, anda reads as i follows : .• )• . " . You are instructed that if Rosie Bunn was present • / ) at the time the burglary was alleged to have 'been corn-/ , mitted and watching for the purpoSe )af assisting.in .the i i commission of-said burglary, to see if any one approached while the defendant; Aelde B. Brown, and England:Bunn ( are alleged to • _have been in the. store,; then she was, an accomplice." • I' •• This ' . instruction was refused, but the court gave the following instrUction: "7. You are further instructed that there is another witness by the name of Rosie Bunn who has testified in this case, and the cdurt instructs you that you may take into consideration all of her testimony in this case and determine yourselves whether or not she is an accessOry: ( The court don't instruct' you as a matter of law that the , witness . is an accessory, but the court leaves that to the '( 1 jury to determine=first, as to whether or not the witness, ( ; / Rosie Bunn, is an. accessory in the . commission of this i offense.• You are to decide yourselves whether or not she is an accessory, that is, -whether she- was present, aiding, either-as principal or accessory. The principal is the party who actually commits-the crime, and •an accessory i-s one who stands -by and aids and encourages and assists in the perpetration of the crime, and not being present and aiding in the perpetration Of -the crime, or had ( advised and encouraged beforehand. And if you believe from the testimony in this case -that-Rosie Bunn had any part in the commission of this offense, either as principal , or accessory along with this defendant, then her testimony alone , is not *-sufficient to convict this defendant; / that is, unless it is sufficiently corroborated -with other testimony independent of and in addition to her testi-i mony which connects or tends to connect the defendant with the commission of the offense. And that corrobora-/ tion is not sufficient if it merely shows that the offense f was committed and the circumstances thereof, but it must
866 BROWN V. STATE. [169 show that the defendant was connected.with the commission of the offense itself, and unless you so believe from the testimony that he was Conneeted with the commission of the offense beyond a reasonable doubt, then . it .will be your duty to acquit." Appellant insists very earnestly that the controlling question in the case was whether. Rosie Bunn was present watching while her husband and appellant e•tered the store, and that an instruction submitting this concrete question should have been given. It is the opinion Of the majority, however, that instruction No. 7, set out above, correctly and sufficiently submitted this question. Instruction No. 7 told the jury to determine whether Rosie Bunn was . an accomplice,. and that they should find that she was an accomplice if she • was present, aiding either as . a principal, or accessory .to the parties who actually committed the crime, and the instruction necessarily meant that if she was watching while others committed the crime she was necessarily.a party to it ; that is, if she was -watching,. she . was present and aiding its commission. It is the opinion of all the judges that the refused instruction might well have been given, but the majority think the 'instruction which the court gave necessarily embraced the proposition of watching; that is, if . .'she watched while her husband and appellant entered the store, she aided in the commission of the crime and waS therefore an accomplice. , The -jury evidently accepted as true the testimony of Bunn and his wife that she was not a party to the crime, that she did not know it was to be committed and was not present for the purpose of watching while it. was being committed, and, if this be true, Rosie Bunn-was not an accomplice, and her testimony is corroborative' of that of her husband and is legally sufficient to sustain the conviction. The verdict of the jury is therefore 'affirmed. .
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.