Oliver v. State , 120 Ark. 188 ( 1915 )

McCulloch, C. J.

Appellant was convicted under an indictment charging him with the crime of burglary by entering the store house of one D. E. Speer M the town of Tinsman, in Calhoun County. The evidence tends to show that the crime was committed jointly by appellant and Bruce Harper and Albert Earnest. Harper confessed and entered a plea of guilty, and the State relies upon his testimony mainly for the conviction of the other two parties accused of complicity in the crime. Earnest wais convicted and on his appeal we reversed the judgment on the ground that the testimony’of the accomplice, Harper, was not corroborated by other testimony.

(1) The indictment charges that appellant and the other persons accused entered the store house of Speer for the purpose of committing the crime of grand larceny, and that they did steal and carry away three coats, six pairs of trousers, 'and certain bolts of calico. The testimony adduced by the State also tends to show that in ■addition to the articles mentioned in the indictment some men’s underwear and a lot of pocket .knives were also stolen. The men’s clothing was found by the officers secreted in /a hollow log, upon information given to the officers by Harper. Harper was arrested about a week after the burglary was committed, and about that time appellant Oliver left Tinsmian and went to De Queen, Arkansas, where later he was arrested toy the sheriff of that county and turned over to tihe sheriff of Calhoun County.

The State undertook to corroborate Harper, the-accomplice, in several particulars. One way in which corroboration was sought was to prove that iappellant had in bis possession ia number of pocket knives shortly after the burglary was committed. The deputy sheriff'who went to De Queen after appellant, when he was in the hands of the sheriff of that county, exhibited to the jury a pocket knife which he stated was sent to him through the mail by the sheriff of Sevier County. He testified further that while he was at De Queen, the sheriff of Sevier County told him in appellant’s presence that he had taken a pocket knife from appellant’s person at the time of making his arrest", and would send it to him later through the mail. He also testified that appellant had since asked him whether the sheriff of Sevier County had sent the knife.

All of this testimony wias admitted in evidence over appellant’s objection, and the ruling of the court in admitting it is assigned as error. We are of the opinion that the court erred in admitting this testimony, and that the error was prejudicial. The error consisted of the admission of the knife in evidence before the jury, as it was not identified by any witness as the one which was taken from the person of the defendant when he was arrested. ' It is true that the officer testified that the.sheriff of Sevier County told him in appellant’s presence that he had taken .a 'knife from appellant’s person, and would send it, but that was not an identification of the knife. The exhibition of this knife to the jury as the one which was taken from appellant’s person might have had some weight with the jury as a circumstance corroborating the accomplice, Harper, when (he stated that he, together with Earnest and appellant, had stolen a lot of pocket knives from the store of Speer. It does not appear that there was any attempt in any other way to identify this knife as one of those taken when the store was burglarized, but it may have been a new and' unused knife so that the jury might have improperly inferred from it that it was a knife that was stolen when the house was burglarized, and that the fact that it was found on appellant’s person was a circumstance sufficient to corroborate the testimony of the accomplice. Therefore, we are of the opinion that the introduction of the testimony was not only erroneous, ¡but it was prejudicial and calls for a reversal of the judgment.

It is also insisted that the verdict is not supported by sufficient evidence in the corroboration of the testimony of the accomplice, but we have concluded not to pass upon that question inasmuch as the testimony may be different on another trial of the cause. The State relies upon appellant’s possession of several pocket knives shortly after the commission of the burglary, and also the circumstances under which he left Tinsman about the time that Harper was arrested, as circumstances sufficient to corroborate. But, as before stated, the testimony may be to some extent different on the next trial of the case, and we will no underbake to determine whether those circumstances, as they now appear in the record, are sufficient to corroborate the accomplice.

It is also insisted that the court erred in overruling appellant’s motion to discharge the veniremen specially summoned as jurors, and also to discharge the sheriff of the county and to designate some other person to summon the jury for the trial of the case. It was alleged in the motion that the sheriff had summoned the special venire, and that he was prejudiced against appellant, and was giving assistance to the prosecution in the effort to procure a conviction in the cause.

The statute provides: ‘ ‘ The court may, for sufficient cause, designate some other officer or person than the sheriff to summon jurors, the officer or person designated being first duly sworn in open court to discharge the duty faithfully and impartially. ” Kirby’s Digest, § 2350.

(2) A trial court is clothed with 'discretion in such matter, and unless an abuse is shown in the exercise of such discretion this court will not disturb the action of the trial court. Holt v. State, 91 Ark. 576. The .allegations of the motion amount only to a statement of the conclusion that the sheriff is prejudiced against appellant, and no proof was offered to substantiate the charge. We can not say, therefore, that there was any abuse of dis-. cretion by the court.

For the error indicated, the judgment is reversed and the cause remanded for a new trial.