770 BROOKS AND GREGORY V. STATE. [169 BROOKS AND GREGORY V. STATE. • Opinion delivered November '9, 1925. 1. CONSPIRACY—NIGHT RIDING—SUFFICIENCY OF INDICTMENT.—Un-. dei CraWford & Moses Dig., § 2795, an indictnient for confeder a ' t-.ing and banding together for the unlawful purpose of doing an unlawful act by destroying a certain dipping vat,is not defective in failing to allege that pursuant to the act of banding together the accused went forth in the night time' and then arid tbere destroyed the vat. 2. CRIMINAL LAW—CORROBORATION OF ACCOMPLICE.—An accomplice's 'testimony that defendants engaged him to join , with them in •blowing up a certain dipping vat and were near by when,he went to the vat to exechte such purpose was sufficiehtly 'cOrroborated . to' suStain a Conviction of night riding bY proof . aliunde as to de-, fendants' threatening .attitude concerning the operation . of the • vat three days previously and tly other testimony as, to the close proximity of other persons when the. accomplice was.apprehended in the act of blowing up the vat. -3. CRIMINAL LAW—READING STATUTE TO JURY.– L'iieadini ' an, inapplicable portion of the statute as ' to corroboration of hcCOmPlices was harmless where the court admonished the . jury that such portion was inapplicable. , CRIMINAL LAW—INSTRUCTION—GENERAL OBJECTION.—An instruction that testimony corroborating an accomplice need hot be suf-• 'ficient to'convict, and that "if you find that there is' enoUgh corroboration, either by direct proof 'or circumstantial evidence, to convince you beyond a reasonable doubt that the defendants or , either of them is guilty, you should convict; otherwise you should acquit7 .—had not open to a general objection. • Appeal from Crawford Circuit Court ; , James Coch-ran, Judge ; affirmed.
ARK.] BROOKS AND GREGORY V. STATE. 771 Starbird Starbird and *Howell & 'Baughman, for appellant. . • H. W. Applegate, Attorney General, and Darden Moose, Assistant,' for appellee. McCuLLocH; C. J. Appellants were convicted of the Crime of night riding, the charging part of the indictment being as follows : * • "The said Logan Bowers, Joe Brooks . and Lee Gregory in the county and State aforesaid, on the 13th - day'of April, A. D: 1925, being more than two persons, did .wilfully, unlawfully and feloniously unite, confederate. and band themselves together for the wilful and unlawful purpose of doing an unlawful act in the night , tithe by then and there, wilfully, unlawfully, maliciously:and feldniously injuring :and destroying the dipping vat known as the. 'Graham vat, situated in Crawford . County, Arkansas, and against : the' peace and dignity of the State of Arkansas." ' . . • • There was a deinurrer to the indictment, which w•as oVerruled, and the ruling of the court in that regard is the basis of the first assignment of error presented on this appeal. It is contended that the indictment is defective in failing to allege that, pursuant to the act , of banding together, the persons named went forth in the night tithe and then and there destroyed the vat. This ;was ruled against the contention of appellants in the case of Sdo. tt v. State, 114 Ark. 38, ' where the statute was lyzed, 'and it . was held that the first sectiOn thereof (Craw! ford & MoSes' Digest, § 2795) made it unlawful for two of more person's to unite, confederate or band them-' selves together for the purpose of "doing an unlawful act-in the night tithe." We held that this constituted ari offense, even thOugii there was no consummation of the coriSpirdtorial act. It is next contended • that there was no testimony corrobOrating that of the accomplice who 'testified in the case, : and that for this reason the evidence.is not sufficient to suStain the verdict. According to the testimony in the
772 BROOKS Ai‘TD GREGORY V. STATE. [169 case, P. B. Gralam operated, near Graphic, in Crawford County, a dipping vat known as the Graham vat. Graham testified that on the night of. April 13, 1925, he had reason to believe that the vat would be dynamited, that he went down into the approach to the vat to watch for intruders, and that, after waiting a while, Bowers approached, and he arrested Bowers and found thatle had three sticks of dynamite in his hand. He stated that he heard voices, and other witnesses testified about discovering two tracks near the vat, which led away from that point. Bowers made a confession and implicated the-two appellants. He testified that he had been living in the community only a few days and had arranged with a brother of appellant Gregory °to work on a farm, and, that the two appellants engaged him to join with.them in blowingup the Graham vat and agreed to pay him five dollars for doing the work. Bowers testified that he and the two appellants went to the vat that night and stopped near by while he went in with the dynamite to blow up the vat. Graham's wife testified that immediately after herhusband took Bowers in charge she heard voices a short distance away which sounded like the persons calling to each other through their cupped hands. This . occurred on ,Sunday night, and Graham testified that on the Thursday before , that date the.two appellants, a. brother of appellant Gregory and a man named Butler came to the,,vat to protest against having to dip their cattle. He testified- to the following conversation with appellant Brooks in the pres, ence of the two Gregorys : "Brooks was kicking about having to dip the cattle. He said it was not right to have to pay for dipping. I said, 'Joe, do you believe that a man ought to pay seventy-five dollars for making a vat and then pay a man to haul water and then not get anything for clipping?' He said that he knowed it was not-right. Then I said that any man who is not willing to pay for dipping his cattle is a son-of-a-bitch." He testified that appellant Brooks had a club in his hand, and that, as the men walked away together, Brooks said, "This winds
ARK. BROOKS AND GREGORY '2). STATE. 773 up the little ball." The jury could have construed this testimonY to be a threat and • a protest against the operation of the vat.' The substance of the witness' testimony was that these parties came to his vat that day in a erent mood, 'protesting against 'being compelled to dip their cattle, and that the last word uttered as they Wont away, was; "This Winds up the' little ball." The*fact that two other persons accompanied Bowers to' the vat and *ere in close ' proximity when he was *about to use the dynamite in blowing up the vat was established by• the testimony of witnesses other than Bowers, the'•aecom-plice, and we are of the opinion that the threatening attitude of appellants with respect to •he operation of the vat and the close connection of that incident with the overt act of the accomplice in attempting to commit the offense was sufficient corroboration to afford evidence legally sufficient to sustain the verdict. . The weight of the testimony was a question for the jnry, as it was sufficient to connect' appellants with the CommissiOn . of the offense 'which had been.prOved by . other *itnesses. • . It is„contended that the instruction;.of the court on the subject of corroboration of the accomplice was erroneous in reading the statute with reference* to misdemeanors, but *we think that there was no prejudicial error for the reason that 'the court stated to the jury that that part of the'statute had no .application. . . .. The court gave the following 'instrnction,- which was objected to,. and .the ruling• of the court is assigned as error :. . "3: The court'teils you that as a matter of law the witness Logan Bowers is an accomplice. Now, it' is not necessary that the . corrobOrating testimony be sufficient to : convict the defendants. or either of them without the testiindny of an accomplice or of some circumstantial evidence, or both. But, if you find that there is enough corroboration, either , by direct proof or -circumstantial evidence, fo cOnvince you beyond a reasonable doubt . that the defendants or either . of them is guilty, you shonld convict. Otherwise you should acquit."
; There was only . a general objection to this instruction. The substance of the iristruction was that it waS not essential that the corroborating testimóny be sufficient of itself . to justify a conviction. The last sentence of the instruction is not in apt form, but it should have been met with a specific objection. : There are other objections to the'instrtictions; which •we .do not consider, of sufficient importance to discuss. We are of the opinion that the evidence was legally sufficient, and that there was no error in the court's charge. . ' Judgment 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.