dissenting. I respectfully dissent because in my opinion there were at least four reversible errors at trial and in the events surrounding it.
First the evidence conclusively showed that Anderson was an accomplice as a matter of law. It was error to give that question to the jury. The majority simply misreads the facts when they say that “it is undisputed that (Anderson) took no part in (the robbery).” What is actually undisputed is that Anderson helped plan 26 robberies including the one under consideration. He drove from Peoria, Illinois to Arkansas to discuss various “jobs” in Arkansas. He stated that he remembered discussing a case of a gentleman and his wife who had a lot of jewelry. Anderson admitted that Spears told him the couple’s name was Hyneman and the man was a bank president. Anderson also testified that he brought guns and handcuffs from Illinois to Arkansas. Anderson lent Spears a suit to wear during the robbery, and he admitted that he knew why Spears wanted it and what he would do with it.
In my opinion the evidence showed conclusively that Anderson was an accomplice. Ark. Stat. Ann. § 41-303 (Repl. 1977). As such was the case, the trial court should have so instructed the jury and should have required the corroboration of his testimony.
Second, it was error to allow the conspiracy charge to stand. The majority state that no prejudice resulted because the appellants were not convicted of conspiracy. Of course, it is clear that the appellants could not have been convicted of conspiracy and the substantive offenses. Conspiracy merges with the substantive offense. After the act is consummated the conspiracy is not indictable. Owen v. State, 263 Ark. 493, 565 S.W.2d 607 (1978); Zachry v. State, 260 Ark. 97, 538 S.W.2d 25 (1976); Elsey v. State, 47 Ark. 572, 2 S.W. 337 (1886). In addition, Ark. Stat. Ann. § 41-105 makes it clear that the appellants could not have been convicted of both conspiracy and the substantive offenses. In my opinion it was error to allow evidence of a crime of which the appellants could not be convicted. I think the conspiracy charges were filed solely for allowing the state to introduce evidence not otherwise admissible.
In addition, there was no evidence to support the majority’s assertion that the conspiracy was ongoing past the date of the robbery. While there was evidence that individual conspirators were disposing of the robbery loot, there was no evidence of any concerted effort to do so and no evidence that any of the proceeds were distributed to anyone other than the person disposing of some particular item from the robbery. The evidence in Hooper v. State, 187 Ark. 88, 58 S.W.2d 434 (1933), upon which the majority relies clearly established an ongoing effort to distribute proceeds to the members of the conspiracy.
Third, the trial court erred in restricting the cross examination of Anderson concerning the bargain he made in return for his testimony. The record clearly shows that such a deal was made. I am not arguing that the appellants were entitled to read the entire sentencing transcript to the jury, but I do insist that the court should have allowed any portions of it directly relating to the deal Anderson made.
Finally, I believe Bumgarner was denied effective assistance of counsel. He was locked in isolation several days before the trial began and separated from his co-defendants as well as from potential witnesses. Bumgarner acted as his own counsel and his isolation unnecessarily hampered his efforts at preparing an adequate defense.