88 --HOOPER- V-r-STATE. [187- HOOPER V . STATE. Crim. 3826
Opinion delivered March 27, 1933. 1. CRIMINAL LAW—REPETITION OF INSTRTJCTIONS.—Refusal of instructions requested by defendant, fully covered by the court's charge, was not error. 2. CRIMINAL LAW—DISCHARGE OF PANEL—HARMLESS ERROR.—Refusal .to dismiss a special panel of jurors selected by the sheriff on the giound of the sheriff's prejudice held not reversible error where
ARK.] HOOPER V. STATE., 89. • accused did not -exhaust his peremptory challenges nor show that any particultir . juror was prejudiced. 3. CRIMINAL LAW—CONSPIRACY—EVIDENCE.—In a prosecution against defendant . as accesSory after the fact to a robbery, it was admissible to proVi that an accomplice brought a portion of the stolen funds to another accomplice and stated that it was sent by • the defendant, though such statement was made after the robbery was committed, since the conspiracy was not ended until , the stolen funds were distributed among the cOnspirators. 4. CRIMINAL LAW—CORROBORATION OF ' ACCOMPLICES.—Evidenc 'e held sufficient to corroborate the testimony of ace o r mplkes to sustain a conviction of being accessory after the fact to a bank robbery. • Appeal frbm. Se • -vier Circuit aourt ; B. g. Isbell, Spe-einl Judge ; affirm-ed. STATEMENT BY THE COURT. - The appellant.herein H, Roooperr,, was convicted as - accessory nfter;the fact to tbe robbery of the Bank of Horatio, it being alleged in the indictment that J. D. Burke an&H. M. COoper, robbed the bank, and that appellant concealed the crime -and harbored and protected. the robbers. , . On the second: day of June, 1932, J. D. Burke and H. M. Cooper robbed the Bankof Horatio of $2,191.50, of which amount $600- was in half 'dollars, gnarters, nickels and dimes. The two robbers were identified by the two employees who were , on duty. at the bank at .the time of the robbery ; and they themselves admitted . having per, petrated the crime. • The evidence : on Jhe part of the:State indicates that the bankrobbery Was the consummation of a conspiracy born in the mind of appellant,. Hooper, sometinie ,bef ore the actual robbery. One of the robbers, J. D. Burke, testified that Roy , Hooper met him in Shreveport and suggested. tbe robbery. Burke, whose home was in Long-view, Texas, procured one -Bunk Harris to assist him in the . proposed robbery, and the two came to Lockesburg, where they Met 'With the appellant and planned the robbery. They made plans for robbing the bank and their getawaY, ete: . APpellant agreea tO fnrniSh 'thern 'with guns and an automobile. OUthe fist 'attenipt to rob We bank Burke and Harris wrecke'd the car furnished them, and . a -few days later they _started td make another a_1-1 tempt; . but Harris backed Bnrke: got in 'touch with
90-HOOPER V. STATE. [187 one H. M. Cooper te aid'him in the robbery. They came back to Lockesburg to perfect their plans and obtained a saCk from Hooper to carry the Money ' in: Hooper also furnished them with the guns and an automebile, and Burke and Cooper robbed the bank and went to a designated place in the woods, where they met W. M. Hulse. Hulse took them to a place in the woodS where they could not be found if the sheriff put dogs on their trail and told them he would come back for them that night and take them out of the woods. He returned later that night and told them that he could not take them out, and they would have to get out the best way they could, and suggested that they leave the money hidden in a stump there. They left the silver hidden in the stuthp and drove the car, Which had been furniShed them by Mr. Hooper', out of the woods. They took Hulse back to town and drove to Hooper's:honse; where they were put into the loft of his barn and were given some quilts, where they . stayed the balance 'of the night, all the next day, and the next night Jim Smith, a negro employee of the : defendant's, took them to Texarkanain one of defendant's cars. They continued froth Texarkana to Longview, Texas, where they were later arrested and confessed the crime. • • After the said robbers had left the State, Biddy Hooper, son of the defendant and also a:participant in the crime, brought to Mt. Hulse's home his Share of the money obtained in the robbery. This Money was in half dollars; quarterS, dimes and nickels ; and Mrs: 'Hulse and her daughter saW-Biddy -Hooper there and heard him state it was the money his daddy' had sent, 'Defendant denied any . participation . in the crime or knowledge of it ; but the . jury was instrUcted : and -found him guilty, and, from, the judgthent of conviction, this appeal is prosecuted:- Gordon B. Carlton, Feazel & Steel and Ben. Shaver, for appellant. . . Hal E. Vorwood, Attorney General, and Pat , Me-haffy, Assistant, for .appellee. KIRBY, J., (after stating the facts). It is insisted that the court erred in refusing to give requested instructions Nos. 2 and 6, in the admission of certain testimony, in
ARK.] HOOPER V. STATE. 91 the ,refusal to discharge a panel of thirty, special jurors ; and:that the testiniony is insufficient to support the verdict, there being no testimony corroborating that of the accomplices. Instruction No: 2 was sufficiently covered by the general instructions given calling attention particularly. to a certain, kind of testimony admitted abont, the facts,: of which it was claimed the defendant had knowledge before the consummation of the robbery. Tho general instruc:: tions being correct, no error was committed in refusing to give this instruction, conceding, not, deciding, -that it was a correct declaration of law. . . Instruction No. 6, on the question of corroboration of the testimony of accomplices, was 'fully covered- by instruction No.. 4,; given by the court, and no error was committed in-not repeating the instruction as No. 6. Trial. courts are not required to give requested. instructions which are hilly covered in the cburt's charge. Smith v: State, 168 Ark. '253, 269 S., W. 995. See .also Middleton v. State, 162' Ark. 535, 258 S. W. 995 ; McCloskey v. State, 168 Ark. 339, 270 S. W. 498; and Bodner v. State, 177 Ark: 424, 6 S. W. (2d) 550. • It is insisted that 'the court erred in refusing to dismiss a special panel 'of jurors selected by the sheriff on account of his prejudice- against the defendant The regular judge was disqualified in the- HooPer cases, and Hon. Ben E. Isbell was selected to trY them; and the court held that' the sheriff Was disqUalified in' Serving , jurors to try Rooper.. : efore this case -waS 'set .for trial, and during the regular terni, the trial jiidge ordered the sheriff to select -30' spe'Cial jurors,- and thiS :case WaS subSequently set for trial, arid it wa g to these 30 jtirors that the clefendant'S motiOn disnaiss the panel Went. Evi-' dence was heard' upmi the motion Which- tended' to shoW the sheriff's prejudice against the defendant, and 'also' that this case was not set for , trial at the Hine he 'selected the special panel of jurors. It Will not be necessary to discuss the proof adduced' on the part of the State in drder tO show that no prejudice resulted to the defendant by the use of these special , jurors, for the reason that on the :trial the defendant did not -exhaust : his , peremptory
92 HOOPER V. STATE. [187 challenges, nor Make any . 8howing whateVer that any par= ticular person who served on the jury was prejudiced against him. The record reflects that -he only exercised 16 challenges in all before the jury which tried the case was selected, and; not having exhausted his peremptory challenges, this constituted an implied admission that the jurors were unobjectionable,' and he has no right to complain here. -York v. State, 91 Ark. 582, 121 S. W. 1070; Rogers v. State, 133 Ark. 85, 201 S. W. 845 ; Bowman-v.. State, 93 Ark. 168, 129 S. W. 80. It is next insisted that the court erred in admitting the testimony of Mrs. Hulse and Mrs. Mills, her daughter, to the effect that Biddy Hooper, another : :accomplice, brought Hulse some of the money obtained in the bank robbery after the robbery was committed and the robbers had left the State, the pufpose of the conspiracy having been consummated. Although it is true that the acts and declarations of a conspirator are inadmissible against his . •co-conspirator after the acComplishment . of the purpose of the conspiracy, such is not-the case here. The purpose was. to rob the-bank and procUre the thoney; and necessarily distribute it among those participating in the enterprise, and the conspiracy cannot be -said to have ended so long as the money procured in the robbery had not been divided among the robbers; Wiley v. State, 92 Ark. 586-592, 124 S. W. 249. • This defendant was charged with the crime of accessory after the fact of the robbery, and it was not:consummated as long as the defendant concealed the crime and protected the principals. In State v. Gauther, 231 Pae. (Ore.) 141, the Supreme Court of Oregon • said : " The acts and conduct of one accomplice, during the pendency of the wrongful act, not only in_its . perpetiation, but:also in its subsequent -concealment, are admissible against the other." In Miller v. State, 88 Tex. -Cr. R. 157, 225 S. W. 262,- the Supreme Court of Texas, in passing upon the question; held contrary to 'appellant's contention, saying:, "Under the evidence from the State's standpoint, the appellant a - nd Corcoran were co-conspirators, and the object of the conspiracy : was the aequisition of the property,'
its 'sale, and the apportionment of the proceeds. Under this evidence, the conspiracy -continued Until its object was accomplished, and the acts and declarations of -Cor-coran in furtherance of . the conspiracy were admissible, though in the absence of the appellant, and though made after the .property had been taken. [Citing cases.] Even if the conspiracy had ended, the check was a part of the fruits of the crime, and its possession by the accomplice was admissible.'? The conspiracy being still in existence, the testimony • of Mrs. Hulse and her daughter to the fact that Biddy Hooper brought the money from defendant, appellant, to Mr. Hulse's house, he being one of the accomplices, and what he said with reference thereto are admissible and". could be proved. It is finally contended that there is not sufficient testimony corroborating the statements of tbe accomplices to support the verdict. Tbe court- has concluded, otherwise, however. Mrs. Burke testified that she brought, her . husband and Cooper, the two bank . robbers, to Mr. Hooper 's house, where they all spent the. night before the robbery; and . she went on back to Texas the next day, leaving theM tbere. HplSe's wife and daughter testi-fied- that Biddy . Hooper brought HUlse .money from file defendant,. it beitig in half dollars, quarters, dimes and nickels, tbe kind of money taken from tbe bank ; and there was other corroborative , testimony sufficient to warrant the jury in Andino- that it connected the defendant witb the commission of the crime.. Middleton- V. State, supra. We find no prejudicial error in the record, and the judgment is affirmed:
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