ARK.] BARTLETT V. STATE. 553 BARTLETT V. STATE. Opinion delivered November 17, 1919. 1. CRIMINAL LAW—BURGLARY—VARIANCE—WAIVER.—Defendant was charged with stealing property from the Missouri Pacific Railway Company, and the testimony showed that it was the Mis-souri Pacific Railroad Company. Held, if this constituted a variance, in the absence of a waiver of the point, proof was admissible that the owner of the goods would have been recognized in the community as either the Missouri Pacific Railway Company, or Railroad Company.
554 BARTLETT v. STATE. [140 . „ CRINTINAL LAW—PRINCIPALS AND ACC t ' SSORIES.—PirsOns present; aiding :and abetting, or ready and willing to aid and abet, are , principals and indictable as such. 3. SAME--ACCOMPL/CE—COBROCORATION.7 .Ap accused can ;riot be con-; ..victes1 :upon the, uncorroborated , ;tcstiinony . of RO , aCCOInpliCL t ' 4. , pup ,i 4R24—Aco . y4-LITERING may_ be _ ,; ;Fonyicted as 4n accompliee_to, tnirglary, alth6ughhe acTs not enter the building, but stayed ouiside and watched, While hii ac-. complice entered the building, and carried away-the stolen goods. 'LAW—PROOF OF GUILT:—The laW does not reqUire that the guilt of the accused: be' established , to the exclusion of every other, hypothesis than that of "guilt.• , • - APpeal from Howard Circuit CoUrt; janie Judge; affirtned. - D. B. Sdin, tOr appellant., r„• 9 1., The- Court erred in giving instruction No.- 1 for 919 §t ate, because 'there is no proof that , the ,gun * taken was the property of the United States , Government i. ex1.- cept , the, colAclusion testified :to by , Mr. I3eayers-, and there a yariance between, the indictment and- the prOof,as, the ,proof, :s,hows tlwt4he.depot was the proPertY , of the Mi0ouri 7 P,a ,eifio- Railroad Compa,ny was .the money, and not that of the- Missouri Pacific Railway Company. 2. No.. 2 for the State should pot have, i?een -given. There was error also in giving the .3r,d ipstruction for the State and in refusing the 4th, 7th and 8th for 'defencr ant. John, D. Arbuckle, Attorney General, and Robert C. K110x, Assistant,for appellee. 1. TheVe was no Variance bei r weeii ib ;e. cilidictment and proof: This was waived really, but if not there was no real Variance. 117 Ark. 296. - 3 2: There was .no error in giving instrnotiOn NO. 2. If-ah-4 Stke f 3, 1-.4 ;)., 3 was not error, if , ret3,di ounection with No. 5 for•defendant_ • Together they state the law, and only a general objection was made. 74 Ark. 431; 94 Id.
11.11LETTV. ,S.TATE. P55 169; 95 Id. 100; 66 Id. 264; 80 245; 116 Id 357iO3 50; 196 io.,362; 119 /4. A02129j , d. 180: 3. There was no error in No..5 given. 5Ark.3:p3,; 0114, SA; 69 id. 558; 120Id. 30. „. „#. .No. 6 'given was ,proper and , has oftgn ;been ap-prov e d. 54 Ark: 489 ; 68. Id. 3; 914/. 579 09.{i Ja, 5.: There was no. error in modifying instNuction:*. 2 . as; ,to carroboration by an , accomplice nor ,in,,pfnsing 1.■l'o::6;for defendant. 86, Ark. 23 ; :64 14. *247, 1„‘ '6. No: 7 refused properly; is, not the 36 , Ark. 117 ; 58 Id: 353; 63 id. 31,0 r75 540.,.:It.is,badalsio because there was 11.6 evidence upon which,to base it, at least the 'first part ; of it:, . . 1 : . . I : .41.1 :There 'waS no error in , refusing= Nos., 8 and7,1-0 for defendant. - = a- 8. 1■1. o error in the haniAión i 6f te'Siiinony'of the officers Who arresteci'the r ; 'as' the 8hi4ingi`boy Siantia1l3, „ repeated their tetimoir t J. , ;Appellant , seeks by this appe41, to Ihaye reversed the judgment of the Howard Circuit tpurt sentencing him• to, a term- of three van in the penitentiary upon' a charge of burglary. :The•indietmont charged- that the property . which; appowntrigte g dea tQ. ote g 1, F at$ 1 ah irnn eliest..of the value' ot$10' and $125 in golci,Isilver land pA pe4,111911e y ). al beigg the. property of tins Uiss4auxj, P )a-cc .. Railway,Qohapany, , a -teorporation;.annl: one . :gun, the property of the :United States Goyermnent, , of i the value of $25. The indictment ‘AsP -allegc1;,that ;the ,building bycaten intp was y a certan: station . hOuse (mned . and, occupied by the Missouri pacific. Railw,ayl• Qompanyo a :e,ot-poyationr.,", • , 4 *. • f,(1 .'(1) - -In stating :the case-sto,the Jury i'nstiactionrifo. rQferrea to the stolen aest and money as• the property of the Missouri Pacific Railway Colnpany,.wheNeas. tke t6s-tinanny showed , that this , yrap : the pro,pe#yrof, the Mis-'80114 Pacific 4ai1p9ad, Cqpaiy, ,ii4ot)jection is :made that there was variance :1etwOu,the , allegation:a414 qae t qa 4 m 9 1 17,. T 4 e obje 4 i9A;w /IPP a49 01.09# i P4 )31.4 :Was .1
556 BARTLETT V. STATE. [140 waived at the time by counsel representing appellant at the trial, but it is now insisted that only the appellant himself could waive the point. In the case of Brown v. State, 108 Ark. 336, the indictment alleged that the stolen property belonged to the St. Louis Southwestern Railroad Company and the proof showed that at the time of the larceny the goods were in the possession of the St. Louis Southwestern Railway Company, and it was there insisted that there was a fatal variance between the allegation of ownership and the proof thereof. It was shown by the testimony, however, that the alleged owner was sometimes spoken of as the railroad and at other times as the railway, and that persons living in the community understood what company was used when it was referred to by either designation. We there said that " the alleged variance between railway company and railroad company did not prejudice the substantial rights of the defendant on the merits. The allegation was sufficient to advise appellant of the name of the owner of the goods which he is alleged to have received." So here if the difference between the allegation and the proof constituted a variance it must be assumed that, if the point had not been waived at the trial, proof could and would have been offered that the alleged owner of the goods would have been recognized in that community, as the same corporation, under the designation of a "railway company" or as a "railroad company." The testimony shows appellant to be a boy seventeen years old and his accomplice was a boy named Shillings, who was about the same age. Shillings became a witness and admitted his own guilt and testified that appellant assisted him in the commission of the crime.- Over appellant's objection, the court gave an instruction No. 2, which reads as follows : " If you find, beyond a reasonable doubt, that Charles Shillings entered the depot and stole the property alleged in the indictment, and that the defendant was present, aiding and abetting or ready and willing to aid and abet, you will convict the defendant."
ARK.] BARTLETT V. STATE. 557 (2) The objection to this instruction is that it directs the jury to find appellant guilty under testimony which Would only constitute him an accessory when he was indicted as a principal and when the testimony shows that, if guilty at all, he was a principal. But persons present aiding and abetting, or ready and willing to aid and abet, are in fact principals and are indictable as such. Kirby's Digest, § 1563; Harris v. State, ante p. 46. (3) It is insisted that the jury was not fully and properly instructed as to the corroboration of an accomplice necessary to sustain a conviction. On that branch of the case, however, the court gave at appellant's request an instruction No. 5, which reads as follows : "You are instructed that the accused could not be convicted on the uncorroborated testimony of an accomplice, and that the testimony must be corroborated by other evidence direct or circumstantial, tending to con- nect -the defendant with the commission of the offense charged, and unless the State does so prove you will acquit the defendant." We think this instruction meets the requirement of the statute in regard to the corroboration of an accomplice. (4) Error is assigned in the refusal of the court to give the following instruction: "You are further instructed that unless you believe beyond a reasonable doubt that the defendant entered the depot of the Missouri Pacific Railroad Company in the night time, and at the time he entered the said depot it was with the felonious intent of committing a felony, then your verdict will be for the defendant." It was not error to refuse this instruction because it directed a verdict for defendant unless it was shown that he entered the depot when in fact and in law he would have been guilty had he stayed outside the depot and watched while his accomplice entered the building and carried away the stolen goods.
558 [140 (5) An instruction, No. 10, which is predicated upon the idea that the testimony in the case is of a circumstantial nature told the jury that before they could convict they must believe beyond a reasonable doubt and to the exclusion of every other hypothesis that appellant committed the offense as charged in the indictment. But this instruction was properly refused because the testimony was not wholly nor chiefly of a circumstantial character. Nor would it have been proper had this been the case. A similar instruction was condemned by us in the recent case of Bost v. State, ante p. 254, where we said that the law did not require that the guilt of the accused be established to the exclusion of every other hypothesis than that of guilt. Objection is made to the admission of the testimony of the officers who made the arrests and who detailed what the Shillings boy said at the time. This could not have been prejudicial, as the Shillings boy substantially repeated that testimony at the tr; Other errors are assigned, but we think it unnecessary to discuss them. No error appearing, the judgment is 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.