dissenting. I would reverse and dismiss the judgmentfor lack of corroborating evidence.
The majority recites our decisions on corroboration of an accomplice and then proceeds to disregard them.
The testimony of an accomplice is suspect — usually the accomplice has made a deal to save his own hide in return for testimony against another suspect. The General Assembly has wisely enacted a law that prevents a defendant from being convicted on such testimony alone. Ark. Stat. Ann. § 43-2116 (Repl. 1977).
Our previous cases have strictly enforced this statute. For example, we have held that the accomplice’s testimony must be totally eliminated and what remains examined. The question is, will the remaining evidence establish the commission of the offense and tend to connect the accused with the crime. Froman & Sanders v. State, 232 Ark. 697, 339 S.W. 2d 601 (1960).
In Green v. State, 265 Ark. 179, 577 S.W. 2d 596 (1979), we held that presence alone at the scene of the crime was not sufficient to corroborate the testimony of an accomplice.
In Dunn & Whisenhunt v. State, 256 Ark. 508, 508 S.W. 2d 555 (1974), there was evidence that the defendants had been seen riding around with the other alleged accomplice to a robbery shortly before the crime. Moreover, in Dunn & Whisenhunt, a witness even corroborated the accomplice’s story that the defendants attempted to establish an alibi by cashing a check at a tavern. We held all this was not enough. Here the majority, relying entirely on the testimony of the accomplice Tumbleson, recites the facts in detail. But totally disregarding Tumbleson’s testimony, what can we find to connect Bly to the crime of murder in the first degree? He was seen about 9:30 that night in a car with Tumbleson and the victim. Later that night he and Tumbleson were seen alone in a car together. The majority says there is evidence of flight. What flight? The evidence is that the defendant’s girlfriend sold a car in Memphis and that Bly was there and took the money. That is not flight. Smith v. State, 218 Ark. 725, 238 S. W. 2d 649 (1951). That is somebody selling a car in Memphis, Tennessee.
It is argued that blood drops were found in the back seat. So what?
It really should not make any difference if Bly was present at the scene of a crime which occurred several miles from where Bly was observed in a vehicle.
While the testimony of the accomplice may seem believable and be detailed, it alone carries no weight. We require additional facts. There are simply not enough in this case.
Where is the evidence that tends to show that Bly killed Ed Burns?
The defendant is presumed innocent until proven guilty; the evidence in this case is just as consistent with Bly’s innocence as with his guilt. He was simply seen in a vehicle with the deceased and Tumbleson before the crime and in a vehicle with Tumbleson after the crime. He was not placed at the scene. There is no evidence whatsoever that Bly killed or participated in the killing of Burns.
This is the second trial. At the first trial Bly testified; so did his girlfriend and his mother-in-law. There was evidence of flight in that case, and based on that record we found that there was sufficient evidence to support a conviction of some sort of homicide. That evidence was not present at this trial and we cannot consider it.
The majority has created a precedent which flies in the face of all of our decisions regarding the testimony of an accomplice.
Mays, J., joins in this dissent.