Norton v. State

        Philip M. Clay, Glenwood, for appellant.

        Bill Clinton, Atty. Gen., by Robert J. Govar, Asst. Atty. Gen., Little Rock, for appellee.

        HICKMAN, Justice.

        Steve Norton was convicted of burglary and grand larceny in the Hot Spring County Circuit Court and sentenced to serve ten years in the penitentiary. This offense was committed in November, 1975, before the adoption of the Arkansas Criminal Code.

        Norton raises several points on appeal, only one of which has merit and needs to be discussed. We reverse because the trial court erred in not instructing the jury that it may determine whether Joe Stevens, a prosecuting witness, was an accomplice.

        The state charged that Norton, Boyd Dillard and Donald Shuffield burglarized a home during the daytime and stole some guns and jewelry. The testimony of these two accomplices, Dillard and Shuffield, was the only evidence that placed Norton at the scene of the crime and directly implicated him in the burglary.

        Norton's defense was alibi. There was testimony, contrary to the alibi, that Norton was at a pool hall the night before the burglary, and, perhaps, that he was in town the day after the burglary.

        Joe Stevens testified for the state and claimed that Norton called him and gave him the guns to keep. Stevens denied knowing anything about the burglary or knowing that the guns were stolen.

        Stevens admitted, after prompting by the prosecuting attorney, that Norton called him, asked him to come over to a friend's house and gave him the guns. Stevens said that he did not want the guns and that he was going to "throw them in the river." He denied any knowledge that the guns were stolen. The guns, wrapped in overalls, were placed in Stevens' car, and taken by him to his father-in-law's farm for safekeeping.

        In this case it was critical to the defense that a determination be made of Stevens' status as a possible accomplice. He was not an accomplice as a matter of law. However, his testimony raised sufficient question about his involvement to require, upon proper request, the jury to decide his status.

        A person cannot be convicted on the uncorroborated testimony of an accomplice. Ark.Stat.Ann. § 43-2116 (Repl.1964). There must be some evidence, however slight, to connect the accused to the crime in addition to any evidence given by a fellow criminal. The jury should have been instructed that they could determine if Stevens was an accomplice. Simms v. State, 105 Ark. 16, 150 S.W. 113 (1912).

        We find no merit to other arguments of the appellant.

        Reversed and remanded.

        We agree. GEORGE ROSE SMITH, FOGLEMAN and ROY, JJ.