Autrey v. State

• Decision Date: 08 June 1914
• Docket Number: 30
• Citation: 168 S.W. 556,113 Ark. 347
• Parties: AUTREY v. STATE
• Court: Arkansas Supreme Court

168 S.W. 556

113 Ark. 347

AUTREY v. STATE

No. 30

Supreme Court of Arkansas

June 8, 1914

Appeal from Franklin Circuit Court, Ozark District; Jeptha H. Evans Judge; affirmed.

STATEMENT BY THE COURT.

Appellant was convicted of the offense of grand larceny, under an indictment charging him with stealing a certain steer, the property of one D. Jordan. The evidence in the case was circumstantial, and its sufficiency is challenged upon this appeal.

The evidence upon the part of the State was substantially as follows: That Mr. Jordan missed his steer and began an investigation to locate it, and found where the animal had been killed 300 or 400 yards inside of a field belonging to appellant's father. He found there a head, foot and some entrails up in an uncleared piece of ground. This was the next day after he had learned that one of his cattle had been killed. He went to Mulberry to see if he could find any trace of his animal and learned that the appellant had been to Mulberry in company with a man named Masterson and another named Mankins, who were jointly indicted with appellant for the larceny of this animal. While at Mulberry he learned that these men had sold a certain hide, and, upon examination of it, found the marks, brand and color to correspond with the animal he had lost. The proof shows the animal to have been killed some time between Saturday night and Tuesday morning as it had rained Saturday night, and all of the tracks, and other signs about the place where the animal was found appeared to have been made since the rain. The proof on the part of the State further tended to show that appellant had driven this steer into his father's field, together with a number of other cattle, on Sunday night, and that about the time this animal was butchered a hog belonging to a Mr Brammer was also killed, and that both the steer and the hog were loaded in a wagon belonging to Mankins and Masterson and that these men, with appellant, drove the wagon into Mulberry and there sold the hog and the hide of the steer; and that they thereafter peddled the beef. There is no proof that any money was actually paid appellant; but he rode in the wagon containing the meats and was present at the sale of some of it. And the proof further tends to show that when he left home he had only twenty-five cents, but after the sale of this meat he went to Fort Smith, and upon his return had two quarts of whiskey which he purchased while there. But he stated that this whiskey had been bought for his mother, who had given him the money for that purpose. Near the place where the beef had been butchered there was found a hand saw belonging to Masterson, which was bloody and had evidently been used in butchering the beef, and both Mrs. Masterson and Mrs. Mankins, who lived together, testified that their husbands and appellant left their home early Monday morning before breakfast, and that shortly after their departure appellant returned and secured the saw.

Appellant admits driving the steer into his father's field on the Sunday preceding the killing of an animal in that field, but he said that this was done because the animal was with other cattle belonging to his father, which he had been ordered to turn into the field, and that he was unable to separate this steer from the other cattle, and it was only on that account that it was turned into the field.

At the trial appellant requested the court to give the following instructions, numbered, respectively, 1, 2 and 3.

1. Before you can find the defendant guilty of the charge brought against him by the indictment, you must find from the evidence beyond a reasonable doubt that the defendant was present at the time the animal was stolen. If this does not appear from the evidence beyond a reasonable doubt, then it becomes and is your duty to return a verdict of not guilty.

2. Before you can find the defendant guilty of the charge brought against him in the indictment, you must find that there was some movement or asportation of the steer mentioned in the indictment by the defendant with the felonious intent to convert the said steer to his own use. If this does not appear from the evidence beyond a reasonable doubt, then you will return a verdict of not guilty.

3. Should you believe from the evidence that the defendant killed the steer for the purpose of stealing it, then under this indictment it becomes and is your duty to return a verdict of not guilty.

But the court refused to give any of these instructions.

The court gave, over appellant's objection, an instruction numbered 8, which read as follows:

8. If there are suspicious circumstances against the defendant, developed in the evidence, and if the defendant has made false, contradictory or improbable statements in explaining or attempting to explain such circumstances, then the jury may consider such false, contradictory or impossible statements, if the defendant made such statements, in determining the guilt or innocence of the accused of this charge.

And the court also gave an instruction, No. 7, as follows:

7. If defendant did not himself steal the steer and was not...