{ "id": 8719845, "name": "Lee H. Burford v. State", "name_abbreviation": "Burford v. State", "decision_date": "1967-04-17", "docket_number": "5251", "first_page": "377", "last_page": "381", "citations": [ { "type": "official", "cite": "242 Ark. 377" }, { "type": "parallel", "cite": "413 S.W.2d 670" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "236 Ark. 878", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1681303 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/236/0878-01" ] }, { "cite": "202 S. W. 225", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "133 Ark. 239", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1575109 ], "opinion_index": 0, "case_paths": [ "/ark/133/0239-01" ] }, { "cite": "45 Ark. 165", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892059 ], "opinion_index": 0, "case_paths": [ "/ark/45/0165-01" ] }, { "cite": "6 S. W. 2d 293", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "177 Ark. 379", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721392 ], "opinion_index": 0, "case_paths": [ "/ark/177/0379-01" ] }, { "cite": "236 S. W. 846", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "151 Ark. 515", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1366102 ], "opinion_index": 0, "case_paths": [ "/ark/151/0515-01" ] }, { "cite": "219 Ark. 452", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1609160 ], "pin_cites": [ { "page": "242" } ], "opinion_index": 0, "case_paths": [ "/ark/219/0452-01" ] }, { "cite": "108 S. W. 2d 1085", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "194 Ark. 576", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723102 ], "opinion_index": 0, "case_paths": [ "/ark/194/0576-01" ] } ], "analysis": { "cardinality": 394, "char_count": 6049, "ocr_confidence": 0.548, "pagerank": { "raw": 1.4684807715834252e-07, "percentile": 0.6587129211008055 }, "sha256": "8762d6fd028d52aa20ea58b5421ae361040eab0c155f0acf8af974ca9814540d", "simhash": "1:cbc2c445702dfc74", "word_count": 1051 }, "last_updated": "2023-07-14T15:00:12.038660+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Fogleman, J., disqualified." ], "parties": [ "Lee H. Burford v. State" ], "opinions": [ { "text": "J. Fred Jokes, Justice.\nLee H. Burford was convicted in the Crittendon County Circuit Court and sentenced to three years in the state penitentiary for the crime of sodomy, consisting of an unnatural sex act with one David Arthur Paris.\nBurford has appealed to this court and relies on the following three points for reversal:\n\u2018 \u2018 1. The Circuit Court of Crittenden County, Arkansas erred in denying motion of the Appellant for directed verdict, upon conclusion of the State\u2019s case in chief and at the close of evidence on behalf of Appellant, as a matter of law, there being no corroboration of the commission of the criminal offense charged.\n\u2018 \u2018 2. The court erred in permitting certain testimony of witness David Gunn to be admitted into evidence over objection of Appellant.\n\u201c3. The Circuit Judge committed error in permitting the jury to return for instructions of the Court as to whether or not, if the defendant was found guilty, they could permit the court to fix punishment which clearly indicated the jury could not agree on a verdict, and the court should have declared a mistrial. \u2019 \u2019\nThe record in the case presents the following facts:\nAbout 11:00 p.m. on December 4, 1965, the appellant met Paris in Memphis, Tennessee. They drove across the river to Arkansas in appellant\u2019s station wagon automobile and the vehicle was parked on a little used side road under the Arkansas end of the Mississippi River bridge.\nAbout 11:00 or 12:00 p.m. officers Busby and Gunn of the Arkansas State Police, while patroling the area came upon the defendant\u2019s parked automobile. Seeing no one in the parked station wagon, the officers directed the beam of a flashlight into the station wagon and found the defendant and Paris naked from the waist down lying on their sides in the seat of the station wagon with the appellant lying behind and close against Paris. Both men were arrested and charged with sodomy.\nParis entered a plea of guilty and he testified as a state\u2019s witness at the trial of appellant. Paris testified in detail as to an act of sodomy committed on him by appellant, including penetration of the body as required by Ark. Stat. Ann. \u00a7 41-814 (Repl. 1964).\nAppellant\u2019s first point is without merit. The crime of sodomy may be proven by circumstantial evidence only. Hudspeth v. State, 194 Ark. 576, 108 S. W. 2d 1085. Certainly no higher degree of evidence is required in corroborating the testimony of an accomplice than is required for conviction. In the case of Beasley v. State, 219 Ark. 452, 242, S. W. 2d 961, this court said:\n\u201cThe rule in this state is that the corroborating evidence need only tend to connect the defendant with the commission of the offense, and not that such evidence of itself be sufficient, and where there is sufficient evidence tending to connect tbe defendant with the offense, its sufficiency is a question for the jury, together with that of the accomplice.\u201d\nAppellant\u2019s second point is also without merit.\nThe accomplice, David Paris, admitted to officer Gunn what had transpired in the appellant\u2019s automobile. The appellant stood about seven feet away when the admission was made and the appellant remained silent. Paris testified to later statements made by appellant in jail which indicated appellant had heard Paris make the first statement. The admission of this, evidence was not error.\nIn the case of Moore v. State, 151 Ark. 515, 236 S. W. 846, a statement offered in evidence was not made in the presence of the defendant and a denial was made by the defendant as soon as he heard about the statement, but in that case this court said:\n\u201cProof of damaging statements against an accused person, made in the presence of the accused, are admitted upon the theory that the jury might find that the silence of the accused, in the face of accusation was a tacit admission. Of course, such testimony might, or might not, have the probative value, the circumstances of the case being such that the jury might find that the accused was not called upon to make denial; but this would be a question for the jury under the circumstances of each particular case. Here, however, Thomas\u2019 statement was made not only in appellant\u2019s absence, but was denied by appellant as soon as he was advised the statement had been made.\u201d\nSee also Martin v. State, 177 Ark. 379, 6 S. W. 2d 293 ; Polk v. State, 45 Ark. 165 ; and Sheptine v. State, 133 Ark. 239, 202 S. W. 225.\nAs to appellant\u2019s third point, Ark. Stat. Ann. \u00a7 43-2306 (Repl. 1964), states, as follows:\n\u201cCourt to fix punishment. \u2014 When a jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment in their verdict, or if they assess a punishment not authorized by law, and in all cases of a judgment on confession, the court shall assess and declare the punishment, and render judgment accordingly.\u201d\nIn case of Ward v. State, 236 Ark. 878, 370 S. W. 2d 425, the trial court instructed, along with other instructions when the case was submitted to the jury, that if the jury was unable to set a punishment, the court would do so. This court laid down the following rule\u2014 holding the above practice to he error.\n\u201cThus, it appears, we have not previously announced any required rule in this regard to guide the trial courts. So, after careful consideration, we now hold that the jury should not he told initially they can let the court impose the punishment hut should he told only after they report they have reached a verdict of guilty hut are unahle to agree on the punishment to be imposed.\u201d (emphasis supplied).\nWe are of the opinion that the jury had reached its verdict on the guilt of the appellant when the inquiry complained of hy appellant was made by the juror. We find no error in the court\u2019s answer to this inquiry.\nThe judgment of the trial court is affirmed.\nAffirmed.\nFogleman, J., disqualified.", "type": "majority", "author": "J. Fred Jokes, Justice." } ], "attorneys": [ "Shillmm & Burrow, for appellant.", "Joe Furcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee." ], "corrections": "", "head_matter": "Lee H. Burford v. State\n5251\n413 S. W. 2d 670\nOpinion delivered April 17, 1967\nShillmm & Burrow, for appellant.\nJoe Furcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee." }, "file_name": "0377-01", "first_page_order": 399, "last_page_order": 403 }