McLemore v. State

• Decision Date: 16 February 1914
• Citation: 164 S.W. 119,111 Ark. 457
• Parties: MCLEMORE v. STATE
• Court: Arkansas Supreme Court

164 S.W. 119

111 Ark. 457

MCLEMORE v. STATE

Supreme Court of Arkansas

February 16, 1914

Appeal from Union Circuit Court; W. E. Patterson, Judge; reversed.

STATEMENT BY THE COURT.

H. E McLemore was indicted for the crime of larceny, charged to have been committed by stealing a cow belonging to C. H Murphy, in Union County, Arkansas. The facts, as developed by the State, are substantially as follows:

In the latter part of the year 1911, C. H. Murphy, of El Dorado, in Union County, Arkansas, and Cage McLemore, of Felsenthal, in the same county, entered into a verbal contract by which it was agreed that C. H. Murphy should furnish the money with which to purchase cattle to be placed on what is known as the "Felsenthal range," in said county. McLemore, under the agreement, was to purchase the cattle and place them on the range, and was to receive no pay therefor. The money advanced by Murphy was to be refunded from the proceeds of the sale of the cattle, with interest thereon at the rate of 10 per cent per annum, and the profits remaining were to be equally divided between Murphy and McLemore. Pursuant to this agreement, Cage McLemore commenced purchasing cattle and placing them on the Felsenthal range. By the fall of 1912 270 cattle had been purchased, altogether, under this contract, and placed on said range. Some of the cattle were shipped out, but it was estimated in October, 1912, that 245 head of the cattle still remained on the range. On the 18th day of October, 1912, Murphy and Cage McLemore entered into a written agreement which provided, in effect, that the title to all of said cattle should remain in Murphy until the purchase money for them should be refunded, together with interest at the rate of 10 per cent per annum, and that after the cattle should be sold, and the amount expended by Murphy in their purchase should be repaid him, the profits, if any were to be divided between Murphy and Cage McLemore; that the title to the cattle at no time was to be in McLemore. Soon after this, Cage McLemore became sick, and was unable to look after the cattle for several months.

Murphy testifies that at frequent intervals he rode over the range with Cage McLemore for the purpose of examining the cattle that in February, 1913, there were 244 head of the cattle on the range, and that in June, 1913, there were only 144 head of cattle on the range; that he suspected the defendant, H. E. McLemore, and his brother-in-law, Gordy Harris, of stealing the cattle; that about 83 head of them had disappeared from the range and had been stolen by some one; that he went to the house of the defendant and found where he had killed and butchered quite a number of head of cattle in a thicket near his house; that he found the head of a crumpled-horn cow there which had been killed not long before; that the marks on these horns were very peculiar, and that they corresponded to a cow which had been pointed out to him some time before by Cage McLemore as belonging to him; that the head of the cow showed that she had been killed with an axe, and he remembered that this particular cow had been branded with an "M" on the right hip. He further stated that he first had Gordy Harris arrested, charging him with the larceny of his cow, and that shortly after this he had a conversation with the defendant in which he stated to him that Gordy had become scared to death when they arrested him, and that he, the defendant, was uneasy for fear Harris would tell something.

R. E. Rowland testified that the defendant said to him, shortly after he was arrested: "Well, they are riding in behind me, and if I do not get some kind of help, I am going to have to turn it all up. I am not going to take it by myself."

After Murphy suspected that the defendant and Gordy Harris had stolen his cattle, he employed the Burns Detective Agency, of New Orleans, to ascertain, if possible, if such was the fact. Two employees of this detective agency went to the defendant's house and represented themselves to be cattle men. One of them represented himself to be named McLemore and persuaded the defendant to believe that he was kin to him. They stated, in substance, that the defendant, after they had gained his confidence, confessed to them that they had stolen from Murphy quite a number of the cattle which were on the Felsenthal range.

Other evidence was introduced by the State, tending to connect the defendant with the theft of the cattle.

The defendant testified in his own behalf, and denied that he had stolen the cattle. He denied that he had confessed to the detectives that he had stolen the cattle, and denied that he had made the statements to Rowland and to Murphy which they attributed to him. Other evidence was introduced by the defendant tending to show that quite a number of the cattle of Murphy which ran on the Felsenthal range had died of starvation and exposure during the winters of 1911-1912 and 1912-1913. Evidence was also introduced by the defendant tending to show that the crumpled-horn cow which was found at his slaughter-pen had been purchased by Gordy Harris from another person, and that he and Gordy Harris had been engaged in the business of butchering cattle and selling them.

The jury returned a verdict of guilty, and the punishment of the defendant was fixed at a term of one year in the State penitentiary. From the judgment of conviction the defendant has duly prosecuted an appeal to this court.

Judgment reversed and cause remanded.

H. S. Powell, for appellant.

1. The court invaded the province of the jury in its instructions with reference to the confessions of the defendant. In its instruction numbered 3, it not only intervened as to the weight of the testimony in telling the jury that the facts detailed in the statements of the defendant were legally presumed to be true, but it also confined them to the single question whether or not the confessions were made. The instructions are further erroneous in failing to explain to the jury how far the truth of this presumption of law should be considered in arriving at the guilt of the defendant. A conviction can not be had upon extra-judicial confessions alone, but the corpus delicti must be proved by other evidence. Kirby's Dig., § 2385; 77 Ark. 126; 94 Ark. 343, and cases cited; 1 Greenleaf on Evidence, §§ 214-216; 22 Ark. 79; 34 Ark. 518; 59 Ark. 439; 84 N.C. 803.

2. In an indictment for larceny, the allegation of ownership of the property alleged to have been stolen is material, and must be proved as alleged. Instruction 11, requested by appellant, should have been given. 73 Ark. 32; 55 Ark. 244; 58 Ark. 17; 97 Ark. 3; 63 Ark. 518; 74 Ark. 442; 145 U.S. 611; 54 Ark. 384; 79 Ark. 499; 91 Ark. 28; 80 Ark. 23; 87 Ark. 412.

Wm. L. Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.

1. The instructions with reference to the confessions were not erroneous. Admissions against interest are always admissible in evidence and are presumed to be true; but in these two instructions the jury were told that they might consider the confessions in connection with the other evidence in the case. 84 Ark. 88-92; 94 Ark. 343, 344. We think there is sufficient proof establishing the corpus delicti. 109 Ark. 446; Id. 332; Id. 365.

2. The instruction 11 requested by appellant was properly refused. The question whether or not a partnership existed between the prosecuting witness and Cage McLemore, or whether the legal title to the property remained in the prosecuting witness, was one for the court. The court's finding is supported by the facts in the case.

OPINION

HART, J., (after stating the facts).

It is first insisted by counsel for the defendant that the court erred in refusing to give instruction No. 11, asked by him. We do not think the court erred in refusing to give this instruction. It is as follows:

"If you find from the evidence in the case that it was the intention of C. H. Murphy and Cage McLemore to form a partnership for the benefit of each, and that each of them contributed either money or services to said partnership, with the understanding that there should be a community of interest in the profits of the business in a fixed proportion, then you are told C. H. Murphy was not the owner of the cow referred to in the indictment, but it was partnership property, and it will be your duty to find the defendant not guilty. "

It is true that in indictments for larceny, the allegation of ownership is material, and must be proved as alleged. Wells v. State, 102 Ark. 627, 145 S.W. 531; Fletcher v. State, 97 Ark. 1, 132 S.W. 918. The record shows that on the 18th day of October, 1912 Murphy and Cage McLemore entered into a written agreement whereby the title to the cattle was to remain in Murphy until they had been sold, and the purchase money refunded to...