Wade GRIFFIN, Jr., Appellant,
Appellant was convicted of assisting in assault of officer Harold Vines in violation of Act 123 of 1967 (Ark.Stat.Ann. s 41--2802.1 (Supp.1969)).
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Evidence upon behalf of the State was as follows:
Appellant's automobile overturned in a ditch. The police were called. Officers Harold Vines and David Ederington arrived at the scene, and saw a crowd of people gathered there. The officers got out of the police car and Vines asked if anyone was hurt. Upon receiving a negative response from an unidentified person, Vines then asked who was driving the vehicle. Appellant, who was standing beside his vehicle, stepped forward, said 'I was. I'm not scared, I've been in the war. I wasn't killed over there. I'm not going to be killed here. Take me, G * * * d * * * you, if you can,' and started [p. 1226] toward Vines with his fists. Vines attempted to halt Griffin by use of chemical mace, to no avail. Griffin started hitting the officer, who then attempted to defend himself by striking appellant twice with a 'slapper.' A group of young colored males then 'swarmed' him. Vines observed that some of the crowd had Ederington down in the street. Griffin was immediately in front of Vines, swinging at and striking him, while the others came up behind the officer and to his side. They knocked Vines down in the ditch, with all of the participants on top of him. Griffin was then on top of Vines, and the others at his side. Griffin was beating the officer with his fists and kicking him and 'hollering' all the while. At the same time, the other participants were kicking the policeman about his arms and legs, and striking him about his face, nose and side. They were also 'hollering.' Vines, feeling that he and his companion were about to be killed, drew his pistol and fired at appellant, who was still kicking and beating the officer. Griffin was struck about his chest and backed away, as did the others. Vines said, however, that they were all still 'hollering' at the police officers, cursing them and saying 'that they were going to get us.'
As Ederington went to assist Vines, after having heard Griffin's statement to the officer when that officer and Griffin started 'scuffling,' he was 'jumped' by two or three persons from the crowd, and knocked to the street. After he had 'scuffed around' with them for three or four seconds he heard the report of a gun and saw everyone start backing away. From his position on the ground, he then saw Vines leaning against a fence over in the ditch with his nose bleeding. Ederington saw Griffin standing about five feet from Vines. He heard Vines 'holler' at the people standing around that if they didn't want Griffin shot again they had better come get him. At that time Griffin was still trying to advance toward officer Vines. [p. 1227] Appellant's father then came and tried to hold him back.
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Appellant seems to take the position that there must be direct evidence of a conspiracy, common design or purpose, and of the intent of the conspirators or joint actors to engage therein. In this he is mistaken. We have long recognized in Arkansas that it is not necessary that an unlawful combination, conspiracy or concert of action to commit an unlawful act be shown by direct evidence, and that it may be proved by circumstances. Parker v. State, 98 Ark. 575, 137 S.W. 253; Dickerson v. State, 105 Ark. 72, 150 S.W. 119; Venable v. State, 156 Ark. 564, 246 S.W. 860; Mondier v. State, 210 Ark. 933, 198 S.W.2d 177; Housley v. State, 143 Ark. 315, 220 S.W. 40. It may be inferred, even though no actual meeting among the parties is proved, if it be [p. 1228] shown that two or more persons pursued by their acts the same unlawful object, each doing a part, so that their acts, though apparently independent, were in fact connected. Chapline v. State, 77 Ark. 444, 95 S.W. 477; Parker v. State, 98 Ark. 575, 137 S.W. 253; Dickerson v. State, 105 Ark. 72, 150 S.W. 119; Mondier v. State, 210 Ark. 933, 198 S.W.2d 177. Where the testimony shows a concert of action, between the persons alleged to have jointly committed a crime, or the person charged and another, it has been held sufficient to extablish the necessary common unlawful object and intent. Parker v. State, 98 Ark. 575, 137 S.W. 253; Doghead Glory v. State, 13 Ark. 236. Where the combination of persons to do an unlawful thing is shown, each of them is liable for the act of one proceeding according to the common plan, if it terminates in a criminal result, even though it is not the particular result intended. Mondier v. State, 210 Ark. 933, 198 S.W.2d 177; Dorsey v. State, 219 Ark. 101, 240 S.W.2d 30.
In Dickerson v. State, 105 Ark. 72, 150 S.W. 119, we approved a jury instruction that if the jury found that three persons, charged with an assault, acted with a common and unlawful purpose, and that during the progress of the assault they were all present and participating, and aided and abetted each other, all persons so participating would be guilty of the same offense and each responsible for the other's acts. The basis of objection to the instruction was that there was no evidence of any conspiracy formed between the three. We held that the facts and circumstances connected with the assault and the presence and participation of those charged was sufficient to show an unlawful combination among the parties to make the assault, and the instruction, a correct statement of law.
We find the case of Childs v. State, 98 Ark. 430, 136 S.W. 285, peculiarly applicable here. Dave Childs was convicted of the murder of one Franklin Williams. The crime was committed at a public speaking. There was bad blood between Childs and Williams because Williams' wife, who was Childs' sister, was seeking a divorce and custody of their children, alleging that Williams had cruelly beaten her. There were brief exchanges [p. 1229] of words between the two. During the last such exchange Scott Childs, Dave's brother, began cursing Williams, who first threatened trouble, then withdrew, when Dave Childs commenced firing a pistol at Williams, hitting him four times. There was testimony that Scott Childs had a knife in his hands and that a justice of the peace had restrained Williams from advancing on Scott before the attempted withdrawal. It was shown that Scott grabbed the breast yoke of a wagon and struck Williams over the head with it immediately after Dave quit firing. We said that the evidence was sufficient to justify the conclusion that Dave and Scott were acting together in making the assault on Williams.
Another case closely parallel to the one before us is Mondier v. State, 210 Ark. 933, 198 S.W.2d 177, where we found the evidence sufficient to sustain the conviction of Mondier of voluntary manslaughter of Gerald Bradley, on a charge of murder in which it was alleged that he, Orville Wayne Sloan and Jerry McCabe, by common agreement, assaulted Gerald, Vernon and James Bradley, and while so engaged Mondier aided Jerry McCabe in the slaying by attacking Vernon Bradley. The evidence only showed that: Mondier, McCabe and Sloan were denied admittance to a tavern, after which the son of the proprietor went outside and became engaged in a fight with someone; the Bradley brothers then went outside and were attacked by Mondier, Sloan and McCabe, in a fight which lasted about two minutes; Sloan stabbed James Bradley and McCabe cut Gerald, while Mondier engaged Vernon. We said that the jury was justified in finding that the fights were part of a mutual plan on the part of Mondier, Sloan and McCabe and that Mondier's engaging Vernon Bradley to prevent his going to the aid of Gerald McCabe was a part of the mutual effort.
We have also held that simultaneous and concerted action by two prisoners in disarming and assaulting two officers having them in custody, sometime after the officers had left them alone in an automobile, was [p. 1230] sufficient evidence to sustain a first degree murder conviction of one of them, as an aider or abettor, even though he did not assault the officer who was killed. Dorsey v. State, 219 Ark. 101, 240 S.W.2d 30. In a murder prosecution, the mere fact that two persons separately approached a third, within a few hours for the purpose of prevailing upon him to kill a fourth person, was held sufficient evidence from which to infer a conspiracy among the three to take the life of the victim. Decker v. State, 185 Ark. 1085, 51 S.W.2d 521. The fact that each of two parties was found to possess portions of stolen goods taken in the same larceny was itself held competent to establish a conspiracy to take the goods and implicate both in the commission of the crime. Wiley v. State, 92 Ark. 586, 124 S.W. 249.
We find that the circumstances shown by the testimony presented by the state were sufficient to pose a jury question as to whether the parties involved in the assault on the officers did so with a common intent and object pursuant to a common plan. It would be extremely difficult, if not impossible, to ever produce direct evidence of a conversation or meeting among the assaulters during the period intervening between the call to the officers and the alleged challenge given them by Griffin, unless one of the participants elected to tell of it. This very problem, arising from the secrecy usually surrounding such understandings, gave rise to the rule, stated by Underhill and often cited by this court, that the existence of the necessary assent of minds may be, and usually must be, inferred from proof of facts and circumstances which, taken together, apparently indicate that they are mere parts of some complete whole. See Chapline v. State, 77 Ark. 444, 95 S.W. 477.
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The judgment is affirmed.