Larry Maynard was convicted in Baxter County Circuit Court of delivery of a controlled substance, after a jury trial. The State’s evidence included the testimony of an accomplice, William Cunningham. The sole argument on appeal is that the evidence corroborating the accomplice’s testimony was insufficient as a matter of law. We affirm.
At the outset we note that Maynard did not raise the issue of the sufficiency of the corroborating evidence at the trail court level, by motion for directed verdict or otherwise. Furthermore, he acquiesced in the court’s instruction which left this issue to the jury. Although Harris v. State, 262 Ark. 506, 558 S.W.2d 143 (1977) is authority for the proposition that under these circumstances we need not reach the issue of the sufficiency of the corroboration, we nevertheless decide this case on the merits, as did the supreme court in Harris.
The requirement that an accomplice’s testimony be corroborated is statutory. Ark. Stat. Ann. § 43-2116 (Repl. 1977) provides in part:
A 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.
The case law dealing with the application of this statute was well set out in King v. State, 254 Ark. 509, 494 S.W.2d 476 (1973):
By its own language, the statute only requires that there be corroboration by evidence tending to connect the defendant with the commission of the offense and that this evidence go beyond a showing that the crime was committed and the circumstances thereof. We have, therefore, consistently held that the corroborating evidence need not be sufficient in and of itself to sustain a conviction, but it need only, independently of the testimony of the accomplice, tend in some degree to connect the defendant with the commission of the crime.
While the corroborating evidence must do more than raise a suspicion of the defendant’s guilt, it need not be direct, but may be circumstantial, so long as it is substantial, and tends to connect the defendant with the commission of the offense. Even though one circumstance of a combination of several circumstances might not be sufficient, all of the circumstances in evidence may constitute a chain sufficient to present a jury question as to their adequacy as corroboration of the accomplice. The question of sufficiency of the corroborating evidence to justify submission of the question of a defendant’s guilt must, of necessity, be governed by the facts and circumstances of the particular case, having regard for the nature of the crime, the character of the accomplice’s testimony and the general requirements with respect to corroboration. Where the circumstantial evidence tending to connect the defendant with the offense is substantial, the question of its sufficiency, along with the testimony of the accomplice, becomes one for the jury. (Emphasis in original and citations omitted.)
This last principle is perhaps sometimes overlooked. The sufficiency of the corroborating evidence will frequently be a question of fact, for the jury, rather than a question of law for this court. See McClure v. State, 214 Ark. 159, 215 S.W.2d 524 (1948). See also Comment, The Impact of the 1976 Criminal Code on the Law of Assessorial Liability in Arkansas, 31 Arkansas Law Review 100 (1977). This is the reason for AMCI 402 and 403, the vehicles through which the trial court is obliged to present the issue to the jury. On appeal, our inquiry is, or should be, not whether we view the corroborating evidence as sufficient, but whether there is substantial evidence to support the jury’s finding that the corroborating evidence was sufficient. And in determining whether there is substantial evidence to support the jury’s finding that the corroborating evidence was sufficient, we need only consider testimony lending support to the jury verdict and may disregard any testimony that could have been rejected by the jury on the basis of credibility. Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985).
In this case Maynard and Cunningham were under investigation by the police for selling drugs. An informant, Charles Beta, was used to make the drug purchases. Maynard was charged for a delivery of marijuana to Cunningham that took place on February 25, 1984. On that day Cunningham was arrested as he returned home from what he testified was a trip to see Maynard to get a new supply of marijuana to sell. Cunningham’s car was searched, under a warrant, and a large plastic bag containing 34 small bags of marijuana was found. Eleven of Maynard’s fingerprints were found on five bags. Cunningham’s fingerprints were found on none of the bags. Cunningham testified that Maynard knew he was suspected of dealing in drugs and that in January he asked Cunningham to go into business with him. Maynard would supply drugs and refer customers to Cunningham. Cunningham would be paid on a commission basis. Cunningham further testified that he obtained about a pound of marijuana a week from Maynard for resale, that Maynard weighed and bagged the marijuana, and that he sold to customers who said “Larry sent me,” a signal prearranged by Maynard. He testified that Maynard came to his house the week of February 17 to pick up money in order to go north to buy more drugs. He also testified that on February 25 he went to Maynard’s and obtained the 34 bags of marijuana subsequently found in his car.
Beta testified that on February 17 he attempted to buy marijuana from Maynard, but Maynard told him he was not selling and referred him to Cunningham. He said that he bought a quarter ounce of marijuana from Cunningham on February 17, after he told him that he knew Maynard. Beta testified that he had purchased drugs from Maynard in the past, had seen marijuana weighed and bagged at Maynard’s house on several occasions, and that Cunningham had never had to weigh or bag the marijuana he sold. He also testified, without objection, that Maynard and Cunningham were working together.
Maynard admitted handling the bags of marijuana but said this was only because he was trying to decide which one to buy. He admitted to making a trip north, to Illinois, in February, but testified that this was to pick up a jeep, not to buy drugs. Maynard testified that he had no scales, but the lady with whom he lived, Jane Chastain, testified that there was a set of scales there, which were used only for cooking.
Laying aside Cunningham’s testimony, surely the corroborating evidence tends to connect Maynard with the commission of the crime. On these facts the sufficiency of the corroborating evidence was a fact question for the jury to decide. The jury’s finding that the corroborating evidence was sufficient is supported by substantial evidence.
Maynard relies heavily on Pollard v. State, 264 Ark. 753, 574 S.W.2d 656 (1978) and Holloway v. State, 11 Ark. App. 69, 666 S.W.2d 410 (1984). Neither case is controlling. Holloway was a burglary case. There was no accomplice and therefore no issue as to the sufficiency of corroborating evidence. The issue in Holloway was whether the presence of one fingerprint on a piece of broken glass found outside a home which had been burglarized was substantial evidence to support a subsequent burglary conviction. We held that it was not. Here the conviction does not rest upon one fingerprint. It rests upon the testimony of the accomplice Cunningham, as corroborated by the fingerprint evidence, which is much more persuasive here, as well as the testimony of Beta, Chastain, and Maynard himself.
In Pollard, the supreme court reversed a conviction for manufacturing marijuana, holding that the corroborating evidence presented only suspicious circumstances. Here, however, we are persuaded that the corroborating evidence does more than merely raise a suspicion that Maynard may be guilty. It tends to connect him with the commission of the offense, as required by the statute.
Affirmed.
Cracraft, J., concurs. Coulson and Mayfield, JJ., dissent.