{ "id": 1624049, "name": "Anderson Gene DuBOIS v. STATE of Arkansas", "name_abbreviation": "DuBois v. State", "decision_date": "1973-05-21", "docket_number": "5734", "first_page": "543", "last_page": "552", "citations": [ { "type": "official", "cite": "254 Ark. 543" }, { "type": "parallel", "cite": "494 S.W.2d 700" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "245 Ark. 396", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1606792 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/ark/245/0396-01" ] }, { "cite": "102 S.W. 704", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1907, "opinion_index": 0 }, { "cite": "83 Ark. 81", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1527102 ], "year": 1907, "opinion_index": 0, "case_paths": [ "/ark/83/0081-01" ] }, { "cite": "251 Ark. 1074", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1633338 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/ark/251/1074-01" ] }, { "cite": "245 Ark. 337", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1606807 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/245/0337-01" ] }, { "cite": "205 Ark. 864", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1488250 ], "weight": 2, "year": 1943, "opinion_index": 0, "case_paths": [ "/ark/205/0864-01" ] }, { "cite": "247 Ark. 434", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1600549 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/247/0434-01" ] }, { "cite": "217 Ark. 153", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718108 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/217/0153-01" ] }, { "cite": "232 Ark. 697", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1694136 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/ark/232/0697-01" ] }, { "cite": "253 Ark. 574", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1627285 ], "opinion_index": 0, "case_paths": [ "/ark/253/0574-01" ] }, { "cite": "98 S.W. 723", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "81 Ark. 173", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1530671 ], "opinion_index": 1, "case_paths": [ "/ark/81/0173-01" ] } ], "analysis": { "cardinality": 727, "char_count": 15057, "ocr_confidence": 0.799, "pagerank": { "raw": 7.084953176653235e-08, "percentile": 0.42625747678725673 }, "sha256": "4bfcc61f88981945b532736154207494129ad070e98f7007c754a24d65c1480b", "simhash": "1:ef840420416e1ff4", "word_count": 2659 }, "last_updated": "2023-07-14T22:26:13.512056+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Fogleman, J. not participating.", "Harris, C.J. and Jones, J. would affirm." ], "parties": [ "Anderson Gene DuBOIS v. STATE of Arkansas" ], "opinions": [ { "text": "Joe C. Barrett, Special Justice.\nAnderson Gene DuBois was convicted of murder in the Crittenden County Circuit Court and sentenced to death. While imposition of the death penalty was not constitutionally permissible, we would not reverse this case solely on that ground, but would remand it for resentencing in line with the procedure approved by this court in O\u2019Neal v. State, 253 Ark. 574, decided December 11, 1972.\nThe controlling principle involved in this appeal is the application of Section 43-2116, Arkansas Statutes Annotated to the record made in the trial court. That Section reads as follows:\n\u201cA 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; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof. Provided, That in misdemeanor cases a conviction may be had upon the testimony of an accomplice.\u201d\nObviously the charge upon which DuBois was tried is a felony.\nACCOMPLICES\nCounsel for DuBois forcefully argue that witnesses, Linda Austin and G. W. Stewart, were accomplices to the crime for which DuBois is charged.\nIn Froman and Sanders v. State, 232 Ark. 697, 339 S.W. 2d 601, this Court said:\n\u201cThere is a conflict of authorities as to whether an accessory after the fact is an accomplice, but the decisions of this Court are to the effect that he is.\u201d\nApplying this rule, whether Mrs. Austin, Mr. Stewart or either of them were accessories before or after the fact or actively participated in the commission of the crime becomes immaterial if, in fact, they were either.\nIn Havens v. State, 217 Ark. 153, 228 S.W. 2d 1003, this Court said:\n\u201cWe have approved the following test applied to determine whether one is an accomplice: \u2018Could the person charged be convicted as principal or an accessory before the fact or an aider and abetter upon the evidence? If a judgment of conviction could be sustained then the person may be said to be an accomplice. . .\u2019 \u201d\nIn Froman and Sanders v. State, supra, this Court quoted with approval the following statement from Underhill\u2019s Criminal Evidence, 5th Edition, Volume I, Page 335, as follows:\n\u201cThe burden is on the defendant to show that the witness for the state is an accomplice. This is usually determined by the Court as a question of law, but if the evidence is conflicting as to the participation of the witness in the commission of the crime the matter should be left to the jury under proper instruction as to intent and participation.\u201d\nApplying these tests to the record in this case, this Court is of the opinion that Linda Austin, at least, was an accessory within the meaning of Section 43-2116.\nThe record reflects that at the time of the trial of DuBois, G. W. Stewart was charged along with appellant and Jerry Austin with the murder of Mack Howell. He had been held in the West Memphis City Jail from the time of his arrest until the time of the trial. During the trial counsel for the State conceded that Stewart was an accomplice. In view of this concession by the State, for the purpose of review (as distinguished from what may occur on a re-trial), we must accept Stewart\u2019s status as an accomplice. Such concession having been made in the trial of this case, it relieved the defense counsel from the burden of proof on the subject and may well have affected the trial strategy or the method of going forward with proof and in the nature of the argument.\nCORROBORATIVE EVIDENCE\nIn Pitts v. State, 247 Ark. 434, 446 S.W. 2d 222, this Court said:\n\u201c... Uncjer the statute a conviction for a felony cannot be had upon the testimony of an accomplice \u2018unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.\u2019 Ark. Stat. Ann. Section 43-2116 (Replacement 1964). In construing the statute we have held that the test of the sufficiency of the corroboration is whether, \u2018if the testimony of the accomplice is eliminated from the case,\u2019 the other evidence establishes the required connection of the accused with the commission of the offense. Froman v. State, 232 Ark. 697, 339 S.W. 2d 601 (1960). Corroborating evidence which merely raises a suspicion of guilt is not enough. Underwood v. State, 205 Ark. 864, 171 S.W. 2d 304 (1943).\u201d\nWhile the writer of this opinion feels that this test is too rigid, nevertheless, I feel bound by the prior decisions of this Court.\nIf it be determined as a fact that G. W. Stewart was not an accomplice as that term is defined above, there is ample evidence in this record to sustain the conviction of DuBois. If, however, it be found as a fact that Stewart was an accomplice, it is clear that the conviction of DuBois must be reversed. Without the testimony of witnesses Austin and Stewart the record contains no evidence connecting DuBois with the killing of Mack Howell. The only evidence placing DuBois in the State of Arkansas at the time of Mack Howell\u2019s killing comes from the testimony of Linda Austin and G. W. Stewart.\nIn Instruction No. 19 the trial #ourt, without objection, told the jury:\n\u201cYou are instructed that one may not be convicted of a felony upon the uncorroborated testimony of an accomplice. You cannot, therefore, convict the defendant on the testimony of an accomplice unless you find such testimony is corroborated by other evidence in the case tending to connect the defendant with the commission of the crime, and the corroboration is not sufficient if it merely shows that the crime was committed and the circumstances thereof, but you are instructed that the amount of such coiroborating evidence and its weight, is a matter solely for the jury. And, if you find that such accomplice has been corroborated by evidence, positive or circumstantial, other than the accomplice\u2019s own testimony tending to show that the crime was committed and connecting the defendant with its commission, you will be justified in convicting the defendant provided you believe him guilty from all of the evidence in the case beyond a reasonable doubt.\u201d\nThe court also defined an accomplice in another instruction.\nThis Court is unable to determine whether the finding of guilty by the jury was based upon a finding of fact that either or both Linda Austin and G. W. Stewart were not accomplices or whether it was based upon the finding of' fact that both were accomplices, but that there was sufficient corroborative evidence to sustain the conviction.\nUpon a new trial we suggest that it would be appropriate for the trial court upon request to give the jury an instruction that would permit it to determine whether Stewart was an accomplice. See Satterfield v. State, 245 Ark. 337, 432 S.W. 2d 472, where such an instruction was requested but refused by the trial court.\nREASONABLE DOUBT\nOver objection, the trial court defined reasonable doubt in Instruction No. 23 as follows:\n\u201cThe phrase \u2018beyond a reasonable doubt\u2019 should be explained to you, and it means that after a full and fair consideration of all the facts and circumstances proved in the case there naturally arises in your mind, either out of the evidence or by reason thereof, or on account of the lack of it, a substantial doubt of the defendant\u2019s guilt, then that is what the law means by a reasonaable doubt. It is not an imaginary or far-fetched doubt to be conjured up in order to allow a guilty man to escape just punishment, but, as stated, it is a shield to protect the innocent from unjust conviction.\nThe best definition of a reasonable doubt is that it is a doubt that is reasonable and one upon which you yourself would be willing to act in any matter of highest concern to you with which you may come into contact in your everyday walks of life.\u201d\nWe have no hard and fast rule as to language to be employed in defining reasonable doubt. This seems to be true in other jurisdictions. Examination of Words and Phrases, Volumn 36, Pages 495-502, discloses a great variety of phrasing that did not constitute error. In this opinion we do not intend to lay down a fixed rule for definition of the phrase \u201creasonable doubt.\u201d Nevertheless, in Laird v. State, 251 Ark. 1074, 476 S.W. 2d 811 (1972), the following definition of reasonable doubt was approved:\n\u201cReasonable doubt is not a mere possible doubt, or imaginary doubt, because everything relating to human affairs and depending upon mortal evidence is open to some possible or imaginary doubt; but it is such a doubt as arises from such a candid and impartial consideration of all the evidence in the case as would cause a reasonable and prudent man to pause and hesitate in the graver transactions of life; and a juror is satisfied beyond doubt if from a candid consideration of all the evidence he has an abiding conviction of the truth of the charge.\u201d\nIn the opinion in the Laird case this Court corrected what was an obvious typographical error in Dempsey v. State, 83 Ark. 81, 102 S.W. 704 (1907), where the letter \u201ct\u201d was dropped from the word \u201cmortal.\u201d\nOn a retrial of DuBois it would not be inappropriate for the trial court to instruct the jury in the language approved in the Laird case, but we made it abundantly clear that other appropriate language defining reasonable doubt would not be disapproved by this Court.\nMOTION FOR DIRECTED VERDICT OF NOT GUILTY\nThe trial court overruled defendant\u2019s motion, seasonably made, for a directed verdict of not guilty. Such a motion would have been proper only if: (1) both Linda Austin and G. W. Stewart were accomplices, and (2) there was insufficient other evidence to corroborate their testimony. An examination of the transcript indicates other evidence is available to the prosecution. At a new trial of the defendant, the deficiencies we find in this record may well be supplied. Under this record a remand is proper as was done in Paschal v. State, 245 Ark. 396, 432 S.W. 2d 879, (1968).\nOTHER POINTS URGED\nNumerous other grounds for reversal are urged in the brief filed on behalf of DuBois. This Court has carefully examined all of these and we find them without merit. Comment upon each of the other points raised would add nothing to the judicial literature and would be a waste of judicial time. Indeed, a number of the points raised have been answered by this Court in O\u2019Neal v. State, supra.\nIn view of the disposition we make of this case, the alleged prejudicial argument of the prosecuting attorney is not likely to recur.\nAccordingly, the judgment is reversed and the case remanded for a new trial.\nFogleman, J. not participating.\nHarris, C.J. and Jones, J. would affirm.", "type": "majority", "author": "Joe C. Barrett, Special Justice." }, { "text": "Carleton Harris, Chief Justice,\ndissenting. I do not agree with the majority that Linda Austin was an accomplice as a matter of law; to the contrary I think this was a fact question to be decided by the jury. Mrs. Austin, during her testimony, testified that she was in fear of appellant, and certainly if her acts, or concealment of the crime, were due to fear, she was not an accomplice. We have also said that the mere failure to inform the officers of the law when one has learned of the commission of a crime does not make one an accomplice. Butt v. State, 81 Ark. 173, 98 S.W. 723. On trial, during cross-examination, Mrs. Austin was asked if she noticed in a newspaper account, following Howell\u2019s murder, that the Howell telephone wire had been cut. She answered that she had and the transcript then reveals the following:\n\u201cQ. At that point did you go to the police and tell them what you knew about it?\nA. I was afraid to.\nQ. You were afraid to?\nA. Yes.\nQ. Because you had aided and abetted in the beginning, hadn\u2019t you?\nA. No.\nBecause, as I told them, Gene might hurt some of my family.\nQ. And that is the reason you did not go to the police?\nA. Yes, sir.\u201d\nThere is other evidence in the record which, in my view, raised a question of fact as to whether Mrs. Austin was an accomplice. The testimony reflected that DuBois had gone to the Howell home to cut the telephone wire, but was first unsuccessful and returned to the house for further tools. From the record:\n\u201cQ. Now, at this point knowing that he was going over there to cut those wires and after having given him and knife, and after him going over there and coming back from an unsuccessful mission, you are telling this jury that you went to your closet and looked in your toolbox and handed him a pair of pliers?\nA. What am I supposed to do? He\u2019s got the gun. What am I supposed to do? Am I supposed to sit there and say, 'Listen here, you don\u2019t do this,\u2019 and then him shoot me?\u201d\nThe motive for the crime, as shown by the state, was that Howell, the deceased, had some days earlier ' made improper advances to Mrs. Austin. Mrs. Austin testified that after DuBois and Stewart left the Austin home, she and her husband went to bed. From the record:\n\u201cQ. And you are telling us now that Jerry, the husband of the wife whose honor had been insulted, went to bed?\nA. Yes. Why not?\nQ. And that you all merely went to sleep?\nA. Yes. We didn\u2019t think Gene would do anything.\nQ. You didn\u2019t?\nA. No.\nQ. He didn\u2019t have any reason to do anything, did he?\nA. We didn\u2019t ask him to do nothing, no.\nQ. Did you try to stop him from doing anything?\nA. We told him \u2014 I plainly asked him \u2014 I told him, I said, 'Jerry will talk to Mack himself.\u2019 And Gene said, \u2018No, I will do the talking.\u2019\nSo far as I knew he was just going to talk to the man.\nI thought Gene was just a big bully. You know, just blowing-off, because he\u2019d said stuff like that before around me.\u201d\nI agree that there is quite a bit of evidence to indicate that Mrs. Austin was an accomplice, but I think the evidence just cited raises a question of fact for the jury to determine.\nTo illustrate my view, let me use a hypothetical situation that I consider analogous to the point in question. A defendant is charged with murder, it being alleged that he killed another by shooting him. Five persons testify that they were in the room where the shooting occurred; that they saw the defendant fire the shots; that the individual killed had no weapon and was sitting in a chair at the time. Yet, if the defendant testified that these witnesses were all wrong, and that the person killed was, at the time of the shooting, advancing on him (the defendant) with a knife in his hand, we would have a jury question.\nI might also say I am even more of the opinion that the question of whether Stewart was an accomplice was a fact question. However, since the state conceded on trial that Stewart was an accomplice, he must be so considered in determining this appeal.\nBecause of the finding of this court that Linda Austin, as a matter of law, was an accomplice, I respectfully dissent.", "type": "dissent", "author": "Carleton Harris, Chief Justice," } ], "attorneys": [ "Donald A. Forrest, for appellant.", "Ray Thornton, Atty. Gen., by: Milton Lueken, Asst. Atty. Gen., for appellee." ], "corrections": "", "head_matter": "Anderson Gene DuBOIS v. STATE of Arkansas\n5734\n494 S.W. 2d 700\nOpinion delivered May 21, 1973 .\nDonald A. Forrest, for appellant.\nRay Thornton, Atty. Gen., by: Milton Lueken, Asst. Atty. Gen., for appellee." }, "file_name": "0543-01", "first_page_order": 565, "last_page_order": 574 }