ARK.] FERGUSON V. STATE 917 TOMMY FERGUSON v. STATE OF ARKANSAS CR 73-138 503 S.W. 907 Opinion delivered January 21, 1974 1. DRUGS & NARCOTICS—EVIDENCE—PURCHASER AS ACCOMPLICE OF SELLER.—For the purpose of determining whether a buyer's testimony would support a conviction for the sale of marijuana without corroboration, one who buys marijuana or other controlled substances and narcotics is not an accomplice of the seller in the sale of the article. 2. CRIMINAL LAW—ACCOMPLICES.—To be an accomplice in the commission of a crime, one must.stand in the same relation to the crime as the person charged therewith and must approach it from the same direction. 3. DRUGS & NARCOTICS—INSTRUCTION ON CORROBORATION OF ACCOMPLICE'S TESTIMONY—REVIEW.—III a prosecution for delivery of marijuana, defendant was not entitled to an instruction on corroboration of accomplice's testimony where neither the purchaser nor other witnesses could be charged with the offense of delivery of marij uana. Appeal from Scott Circuit Court, David Partain, Judge; affirmed. Donald Poe, for appellant. Jim Guy Tucker, Atty. Gen., by: Alston Jennings, Asst. Atty. Gen., for appellee. FRANK HOLT, Justice. Appellant was convicted by a jury of the delivery of marijuana in violation of Act 590 of 1971 as amended (Ark. Stat. Ann. § 82-2617 [Repl. 1960]). A two year sentence was assessed in the Department of Corrections. Appellant contends for reversal of the
918 FERGUSON 7). STATE [255 judgment that the purchaser and other youths instrumental in the purchase of the marijuana from appellant are accomplices and, therefore, their testimony must be corroborated. Appellant is correct in asserting that "a conviction cannot be had_ in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense." Ark. Stat. Ann. § 43-2116 (Repl. 1964), Moore v. State, 251 Ark. 436, 472 S.W. 2d 940 (1971). In the case at bar, however, appellant's contention for reversal was determined adversely in the recent case of Sweatt v. State, 251 Ark. 650, 473 S.W. 2d 913 (1971). There we refused to classify the purchaser in an LSD sale as an accomplice of the seller. We said: It is uniformly held that one who buys narcotics, intoxicating liquor, or other contraband is not an accomplice in the sale of the article, for obviously he is not selling to himself. **** [t]o be an accomplice one 'must stand in the same relation to the crime as the person charged therewith and must approach it from the same direction.' A buyer and a seller certainly approach the transaction from opposite poles. **** The reason for holding that the purchaser is not the accomplice of the seller is that the purchaser, if guilty of any crime, is guilty of a crime distinct from that for which the seller is being prosecuted. In the instant case neither the purchaser of the marijuana nor the other witnesses delivered the controlled substance. Therefore, neither could be charged with that offense. Their participation would be a separate and distinct offense, if any. Consequently, the court correctly refused to give an instruction relating to the requirement that the testimony of an accomplice or accomplices must be corroborated. An instruction must be germane to the issue. Affirmed. HARRIS, C. J., not participating.
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