The opinion
Sam Robinson, Associate Justice, dissenting.
As I see it, there are two points for decision in this case: First, is there any evidence of appellant’s guilt other than the testimony of accomplices? Second, is there a proper record before this Court raising the question of whether the accomplices are corroborated? In my opinion, there is not a scintilla of such corroborating evidence. True, the State’s witness, Donald Stuckey, an acknowledged accomplice, implicates the appellant. And, although from Brown Rainey’s testimony it is established that he helped Stuckey steal and butcher some cattle, it is not clear that an inference can be drawn from Rainey’s testimony that Carter knew anything about the cattle stealing. But even if Rainey’s testimony is susceptible to such an inference, it is perfectly clear that he is an accomplice. Other than the testimony of the two accomplices, there is no evidence of guilt on the part of appellant. At the scene of the killing of some of the cattle, the hull from a 22 rifle shell was found. It was shown that Carter owned a 22 rifle, but there was no effort to show that the 22 shell was fired from Carter’s rifle, even though ample facilities are available to law enforcement officers to make such a determination, and, of course, untold thousands of people own 22 rifles. But even if it were shown that the cartridge came from the 22 rifle belonging to Carter, in this case that fact would carry no weight, since it is clear from the record that Stuckey, an accomplice, had full access to the rifle.
Carter owns a refrigerated truck with a red cab and yellow body, with his name painted on the side in bold letters. One Joe Swain testified that he saw a yellow truck on the road near the place where some cattle were killed on the day they were killed. But the record further shows that he did not know when the cattle were killed. He gives no explanation of how he knew the day the cattle were killed; in fact, the record shows that the first he knew about the matter was seeing it in a newspaper. The owner of the cattle had found evidence that cattle had been butchered, but he made no effort to say when they were butchered, other than that it was during the last of March or first of April. Stuckey says it was the first two weeks in April. Swain does not attempt to identify the truck he saw as belonging to Carter, nor does he say he saw Carter. The only evidence in the record that connects Carter with the crime is the testimony of Stuckey, and his testimony is not corroborated in any particular. The majority opinion states that a pick-up truck belonging- to appellant was used to transport the stolen animals. The only evidence to this effect is the testimony of the accomplices.
It is the law of this State that a defendant cannot be convicted on the uncorroborated testimony of an accomplice. Ark. Stat. § 43-2116 provides: “A conviction can not 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 . . . ” The rule that a defendant cannot be convicted on the uncorroborated testimony of an accomplice has been firmly established since the 1700’s. Professor Wigmore discusses the history of the rule in his great work on Evidence, 3rd Ed., Vol. 7, beginning at page 312, and quotes Lord Abinger in R. v. Farler, 8 C. & P. 106 (1837): “It is a practice which deserves all the reverence of law, that judges have uniformly told juries that they ought not to pay any respect to the testimony of an accomplice unless the accomplice is corroborated in some material particular . . . The danger is that when a man is fixed, and knows that his guilt is detected, he purchases immunity by falsely accusing others. ’ ’
The rule that a defendant cannot be convicted on the uncorroborated testimony of an accomplice has been proved to be a good rule, for centuries. We adopted it by statute in 1883. It should not be lightly cast aside.
The next point is whether the condition of the record is such that a reversal should be ordered because the accomplices’ testimony is not corroborated. The majority opinion mentions only the appellant’s motion for a new trial, in which there is assigned as error the action of the trial court in overruling a motion for a continuance. But this part of the motion for a new trial was only supplemental to a previous motion for a new trial on the ground that the verdict of the jury was based on the uncorroborated testimony of an accomplice. Subsequent to the time the verdict of the jury was returned, the attorney for appellant made a motion as follows: “Now, I move that the case be dismissed because the trial Court heard the case tried and there was not one person that got on the witness stand and testified that Jim Carter received any cattle or any meat whatsoever except Don Stuckey. And that the trial lawyer asked each one of them under oath, ‘Can you turn here and tell this jury that?’ and they said, ‘No, we can’t do that.’ And the Court knows that the law is under the testimony of Don Stuckey and the law, and the Court knows that this is the law, that you can’t convict. And I ask now for a mistrial because the Court knows there wasn’t any corroborating testimony.” In overruling the motion, the trial court said: ‘ ‘ Motion denied. The motion for a new trial is denied because the question raised therein was not raised at the proper time.” [our italics]
It will be noticed that the last sentence in the motion states: “And I ask now for a mistrial because the Court knows there wasn’t any corroborating testimony.” And it appears that the only reason the court overruled the motion was that in the opinion of the trial court the question had not been raised at the proper time. The only other time it could have been raised prior to the time the motion was made would have been a motion for a directed verdict of not guilty, and such a motion was made when the State rested its case. The words “new trial” would probably have been more appropriate than “mistrial”. It was, however, understood that appellant’s attorney was speaking of a new trial, because the trial had been completed — the verdict had been returned, and the trial court treated the motion as one for a new trial. The court said: “The motion for a new trial is denied.” True, the motion was oral, but there is no requirement that such a motion must be in writing. “A motion is an application made to a court or a judge for the purpose of obtaining a rule or order directing some act to be done in favor of the applicant. Motions are not regarded as pleadings in the ordinary or technical sense of the term, even where they are reduced to writing. A petition, in common phrase, is a request in writing, and in legal language describes an application to a court in writing, in contradistinction to a motion, which may be made viva voce.” 37 Am. Jur. 502 . Whether the motion was prior or subsequent to another motion for new trial makes no difference, just so it was made within the time allowed. Here there is no indication that it was not made within apt time.
“Where a supplemental motion was filed within the time allowed by statute, although after the original motion was overruled and an appeal granted the error relied on therein is available on appeal.” 24 C.J.S. 378. In Burton v. Commonwealth, 248 Ky. 408 , 58 S. W. 2d 650 , the Kentucky court said: “At the outset we are met by the commonwealth’s contention that the alleged error was not included in the motion and grounds for a new trial. We find, however, that, after the motion for a new trial had been overruled, an appeal granted, and the amount of the appeal bond had been fixed, appellant, at the same term, filed supplemental motion for a new trial on the ground that the change of venue was improperly refused. In the case of Commonwealth v. Neal, 223 Ky. 665 , 4 S. W. (2d) 685 , w~e had occasion to consider the question, and it was held that, although a motion for a new trial has been overruled, an appeal granted, and appeal bond executed, the defendant may file at the same term of court additional motion for a new trial.”
I am at a loss to understand why the majority completely ignore appellant’s motion for a new trial based on the contention that there is no evidence of guilt except the uncorroborated testimony of an accomplice. If it is because the motion was not in writing, the answer is that no law provides that it must be in writing. If it is because the word “mistrial” is used instead of “new trial”, the answer is that the trial court understood it to be a motion for new trial and dealt with it as such, and, moreover, for this Court to make a final determination of the case on such an extreme technicality would be contrary to the modern trend of courts to decide cases on the merits and to avoid disposing of litigation on a technical rule of procedure. It is hard to believe that any court would hold that a person must go to the penitentiary, although there is no valid evidence of his guilt, because his lawyer in an oral motion used the word “mistrial” instead of “new trial”. If the majority ignore the motion because no brief was filed in appellant’s behalf, then the case should not have been considered at all. But the rule is to consider appeals in felony cases regardless of the lack of or inadequacy of briefs. In my opinion, the only evidence of appellant’s guilt is the uncorroborated testimony of an accomplice. There is an ample record, and the judgment should be reversed.
I am authorized to say that Mr. Justice Johnson joins in this dissent.