ARK.] DRAPER V'. • TATE.' 675 • • DRAPER V. STATE. Criim 3982: L 'Opinion deliVered May 4, 1936. 1. Hoivuon:—One who does no more than conceal the guilt of 'his brother who has committed a crinie is not, under § 2313; Crair-• ford & Moses' Dig., an aecomPlice, and his testimony Maybe Used • to corkoborate that .of an accomplice.. 2. CRImINAL LAW 7 ---INSTRUm0N.—Giving an instruction by which . the jury are:told that if they believe that any , witness haci testified falsely in any respect, they might wholly diSregard all the. 'testiMony of'sueh witness, etc., is not'reversible 'error where miry a –general – objection thereto was interpoSed. 3. CRIMINAL LAW—INSTRUCTION.—An' :Mstruction telling the jun,. that, where ., theState depends , in , part , ,on circumstantial„evi-, dence for corroboration of the testimony of an accompliCe, the chain oCcircumstances Must be Wholik . inc oi nsiStent with deferid-ant'S innocenee, etc.; may• properly be' refused, since 'it does riot' • state the. correct rule.' • 4. CRIMINAL LAW—CONSPIRAgY.—Where, in a prosecution:for Mur-: der, the , ev . idence in the ,whole , case shows. a conspiracy, the . ad-. mission Of ,the testimony ot defendant's ' co:conspirator before re-quiiing the* Siate to intrOdtee evidence tending 'to show a con.-' spiracy between:them is 'not . prejudicial error. ' 5: 'CRIMINAL..LAW—ARGUMENT. EvidenCe held sufficient to justify. the argument xif prosecuting . attorney. as,to why the .finger-prinis of appellant were not found in the room where the murder, was. committed."' ,...• Appeal, from Garland Circuit „Court:. E,arl .Witt,, Judge ; affirmed. ,Fl. . 4.'Tueker and Calvik Sellers, f or.. appellant. • . ' Carl: E. Bailey, Attorney: General,;and Guy liaks F . .Ko one; Assistants, for appellee. • HUMPHREYS; :j. Appellant 'ws:indicted i .. fried an-er conVicted in the circuit . court of Garland-County of mur-i der in the 'first degree for . killing. Tom•Menser in March; 1935; and 'the : death penalt r:was imposed by the -jUry,' -from which judgment of . conviction an appeal has been: duly 'prosecuted to this' court. . . • . The: chief witnes g for the State . was Roy House; the accomplice- of appellant, who testified, in substance; that he and appellant . entered into, an agreement on Friday night to rob 'Tom , Menser, who -.resided' on highway '70,- some 'nineteen or•twentymiles' west of Hot Springs.; that'
676 DRAPER V. 'STATE. [192 they stopped about a mile and a . quarter before reaching Menser's home and built a fire, where they remained for some time; that they planned for appellant to grab and hold Menser when they entered the house while he, witness, would search and rob him; that pursuant to the agreement, they drove the car beyond Menser's house about a quarter of a mile and parked it; that they walked back on the highway and entered the yard, and walked around the house to the back door, and when they made themselves known, Menser invited them in and asked both of them to take seats by the fire; that witness and Menser sat down, but that appellant walked around behind Menser and struck him with a wrench he had brought from the car and beat him to death; that before entering the house, appellant put on some old gloves; that after beating Menser to death, appellant ordered witness to search the dead man, which he did; that ail= pellant then searched a trunk: in the room and witness a table, Where he found $8; that appellant found a watch and gun in or near a bed ; that they counted the money and left the house and went around through the field and out to the car; that they drove on toward the Duncan's where appellant was residing, with his aunt; that when near there, he, witness, got out and remained in the woods near the house until about three o'clock Saturday afternoon; that appellant met him Sunday and took the watch and gun and let witness keep the money; that he advised witness to leave the country, which he did, going to Columbus, Georgia, where he had planned to, go before ; that after about two months, his brother, Carl House, came to him in Georgia and that they traVeled through a number of States together until they reached Texas, where witness was Arrested and brought back to Garland county; that about a week later his brother returned. Carl House testified, in substance, that on Sunday after the killing, being worried -about his brother and knowing that appellant and his brother were out together on Friday night, and suspecting that maybe they had killed and, robbed Menser, of whose death he had beard, he went to appellant's house and made inquiry
ARK.] DRAPF.R V. STATE.' 677 about his brother and whether they were implicated the murder, and appellant admitted they were .conneeted with it, and that they had . divided.the . loot,. , he keeping the gun and watch, and Roy themoney.; : that he showed him the watch .and gun; thathe recognized .tb.e , watch .as . Menser's; that he, witness, afterwards .bold.,appellant that the officers had taken finger , prints . in the home where, Menser . was killed, and also told apiiellant they „would get them and appellant replied ,they . would . not: get as..he had on .gloves at the time. . . . . Many witnesses testified in the- Case.. TwO . testified. that theY observed tracks Tof . two _persons , going' :ont_ intT)7 the . field around Menser's house. , In order to decide the assignments of , ,erro* arkupd and insisted:upon for a reversat , Of the Judgment,.We do. not deem it necessary to' make a•detailed statement of. the testimony of the two witnesses .named Or any,of the, others. Suffice it to say the evidence of , Roy ;House is ample to sustain the verdict of murder in the first degree if ' ,sufficiently corroborated. There is. no .questionfmade that the testimony of Carl Honse fails to . suppkt ;that of Roy House, .but appellant. makes the. contmition tilat Carl House is, himself, an accomplice, an&that is that one accomplice cannot . 6orrohorate the,;testimony: of another accomplice under the:rule .that ,one charged with crime cannot be convicted, on the uneorrob9rated testimony of an accomplice. Carl Howe . Was not an.ac7 complice in the instant case although . he:concealed 'from the officers the information . he receivecl : fromHappellant-concerning the participation . of appellant _and his ;brother_ hi the crime. He could not have disclosed the.:intorma-. tion he received from appellant without disclosing.. thp, guilt of his brother, Roy House. ,.Section.,2313,.of..Cra. ford &. Moses' Digest is, in part, as . follows provided, that Persons standing, to, the accu . sed in the relation of *' brother '. shall not . lie; deemed , .ac,-; cessories after the fact,. unless : they , resist the .lawftil! arres,t of such. offenders." , tdmolulson.y.. S ' taie, 51, 115, 10 S. W. 21. Not, therefore, being an accomplice, .in.yiew of hi.s relationship .to Roy House, in the instant case, , his. testi-
678 DRAPER V. STATE. [192 mony sufficiently corroborated that of Roy House to sustain the conviction. The appellant also assigns as reversible error the giving of instruction No. 13, which is as follows: "If the jury believe that any witness has testified falsely in any respect, you may wholly disregard all the testimony of said witness or you may believe that part of his testimony which you believe to be true, and disregard that part of his testimony which you believe to be false." The wording of the instruction was not an accurate statement of the law, but the omitted words complained of would likely have been inserted had the court's attention been called to it by a specific objection. Only a general objection was interposed to the instruction. In the case of Flake v. State, 161 Ark. 214, 255 S. W. 885, in summing up the ruling on similar instructions to the one objected to in the instant case, the court said: "Therefore, the effect of all these holdings of our cOurt is that an instruction couched in language like that here under review, or of the same purport, does not strictly and accurately state the law, but the refusing of such an instruction is not reversible error, because it is not error for the trial court to refuse an instruction that does not correctly declare the law. And the giving of such an instruction is not error in the absence of an objection calling attention to the specific language to which the objection is made and which is claimed to be erroneous and misleading." Appellant also assigns as reversible error the refusal of the court to give his requested instruction No. 1, which is as follows : "You are instructed that where the State depends in part upon circumstantial evidence for corroboration of the testimony of an accomplice the chain of circumstances must be wholly inconsistent with defendant's innocence, and must be so convincing of defendant's guilt as to exclude every other reasonable hypothesis, and it must establish in the minds of the jury an abiding conviction to a moral certainty of the truth of the charge." The rule contended for in this instruction is not correct and does not square with the rule announced in the
ARK.] 679 cases of Osburne v. State, 181 Ark. 661, 27 S. W. (2d) 783, and Daniels v. State, 186 Ark. 255, 53 S. W. (2d) 231. Appellant also assigns as reversible error the admission of the testimony of Roy House, his co-conspirator, before requiring the State •to introduce evidence tending to shOw a conspiracy between them. No prejudice resulted to appellant on this account because the evidence in the whole case is sufficient to show a conspiracy. Hearne v. State, 121 Ark. 460, 181 S. W. 291. Appellant also assigns as reversible error the action of the court in permitting the deputy prosecuting attorney to say in his argument that "efforts were made to take finger 'prints in the room where the deceased, Toni Menser, was killed." There was testimony in the case to the effect that appellant put on gloves before going into the room, and when informed by Carl House that they were taking finger prints and would get "you fellows," appellant answered, "No they won't," and pulled from his front pocket an old pair of dress gloves, worn badly, , greasy and dirty. We think the deputy had a right to comment on this testimony in an effort to show why the finger prints of appellant were not found in the room. No error appearing, the judgm • ent 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.