Atterberry v. State

• Decision Date: 22 October 1892
• Citation: 20 S.W. 411,56 Ark. 515
• Parties: ATTERBERRY v. STATE
• Court: Arkansas Supreme Court

20 S.W. 411

56 Ark. 515

ATTERBERRY v. STATE

Supreme Court of Arkansas

October 22, 1892

APPEAL from Marion Circuit Court, B. B. HUDGINS, Judge.

Robert Atterberry and Abe Williams were indicted for larceny of three suits of clothes and other property, of the total value of $ 59, belonging to W. C. McBel. Both were convicted. Atterberry has appealed.

The evidence is sufficiently, stated in the opinion. The court instructed the jury, at the instance of the State, as follows:

"2. If you find that E. C. McBel feloniously took and carried away goods such as is described in the indictment, of the property of W. C. McBel, of the value of more than ten dollars, and that defendants were present, aiding, abetting and ready and consenting to aid and abet in said act, you would be authorized to convict the defendants; provided said defendants knew at the time said goods were being stolen by the said E. C. McBel, and this is true although you may find that the said Ernest McBel was at the time the clerk or agent of the said W. C. McBel to sell said goods." The court refused to give the following instruction requested by the defense:

"1. I charge you that in larceny, the larceny is complete the moment the goods are taken in possession by the person stealing same; and that if, after that, one receives the goods knowing them to have been stolen, this, of itself could not constitute the crime of larceny on the part of the one so receiving them."

Appellant insists that the evidence was insufficient to support the verdict, and that the court erred in giving the above instruction asked by the State and refusing to give the instruction asked on behalf of the defense.

Affirmed.

DeRoos Bailey for appellant.

1. The court erred in failing to administer the oath required by the statute. Mansf. Dig. secs. 2265-2268; Bish. Cr. Pt. vol. 1 secs. 991-2-3; Bish. St. Cr. secs. 86, 90.

2. The first instruction should have been given. Bish. Cr. Law, vol 2, secs. 794, 799; 37 Ark. 274; 41 id. 173.

W. E. Atkinson, Attorney General, and C. T. Coleman for appellee.

It was error to fail to administer the oath to the officer, prescribed by sec. 2265, Mansf. Dig. 38 Ill. 514; 44 id. 452; 124 id. 218; 14 S.W. 480; 46 Hun, 667; 16 Wis. 355. Is it a reversible error? The record recites that the jury retired in charge of a sworn officer. No objection was made at the time. 116 Ind. 51; 14 Bush, 340. Our law is not so strict as in some States. 32 Ark. 309. No prejudicial error appears.

2. The instruction properly refused. Mansf. Dig. secs. 1505, 1508; 32 Ark. 727; 42 id. 94.

OPINION

HEMINGWAY, J.

The appellant alleges as a ground for a reversal that the verdict is not supported by the evidence. In determining it we are called to decide whether the evidence warranted a finding that he was guilty of any offense; and if so, whether it was larceny, or some other crime, as embezzlement or receiving stolen property.

As to the material facts, there is no controversy. The defendant was a witness in his own behalf, and his statement agrees in all essentials with the testimony of the State's witnesses. That E. C. McBel was a salesman in the store of his father, that he took from the goods kept for sale there articles charged to have been stolen, that he handed them to the defendant and one Abe Williams, who were at the store and they carried them away, and that this was done in pursuance of a previous arrangement between the parties, are admitted facts. It is further admitted that the defendant and Abe Williams knew that the goods belonged to W. C. McBel, and not to E. C. McBel.

The excuse defendant offered for taking the articles was that E. C. McBel had promised to give them to him and Williams by way of compensating them for services to him, and that they thought he had authority from the owner to do it.

I. Whether the act was criminal or not depended upon the animus of the defendant in doing it. If he really believed that such authority existed, and took them under such belief, he would not be guilty of any offense, even though the authority did not exist; but if he knew that the authority was wanting, his act was criminal, for he knew that W. C. McBel owned the articles, and that they were taken with the intent to deprive him of them. That he was not mistaken as to the authority, but on the contrary knew there was none, has been found by the jury; and we think the circumstances of the taking, as detailed by the defendant and other witnesses, inevitably lead to that conclusion. As this finding of a felonious intent is sustained by the evidence, we have next inquired whether the facts make a case of larceny against the defendant. The articles taken were kept for sale by their owner in a store in which E. C. McBel had authority to be present and sell the goods. They were legally in the possession of the owner, even if for a time left in the custody of the salesman; and an appropriation of them by the latter was a trespass on the possession of the former, within the meaning of the law defining larceny. Powell v. State, 34 Ark. 693; 2 Bish. Cr. L. (8 ed.) §§ 365, 8236 et seq.

As the goods were appropriated in the presence of the defendant and in execution of an agreement with him, and the defendant was there to receive and carry them away, he was a party to the act of appropriation, equally as if it had been done by his own hand, and was likewise liable to prosecution for it. Mansf. Dig. sec. 1508. We think the conviction for larceny was in accordance with the evidence.

II. From what has been said, it follows that there was no error in giving the second instruction for the State or in refusing the first for the defendant. The former was a fair declaration of the law of the case; and there was no evidence to which the latter was pertinent.

III. It is urged, as a ground for reversal, that upon the final submission of the cause the jury retired from the court room to consider of its verdict in charge of an officer who had not taken the oath prescribed by section 2265 of Mansfield's Digest. This presents the most difficult question in the case. We think it proper that such oath should be administered; for if the section relied upon relates only to the care of the jury before final submission of the cause, the common law practice requires that the officer put in charge of the jury when...