Baker v. State

• Decision Date: 03 March 1894
• Parties: BAKER v. STATE
• Court: Arkansas Supreme Court

25 S.W. 603

58 Ark. 513

BAKER v. STATE

Supreme Court of Arkansas

March 3, 1894

Appeal from Phillips Circuit Court, GRANT GREEN, JR., Judge.

Gilbert Baker has appealed from a conviction of the crime of receiving stolen goods under an indictment containing two counts,--the first for grand larceny, the second for receiving stolen goods.

Defendant moved to set aside the indictment upon the following grounds "(1) The said indictment was not found or presented by sixteen good and lawful, fair and impartial, jurors. (2) E S. Ready, the injured party named in the indictment herein was a grand juror and member of the grand jury by whom said indictment was preferred, and had prejudged the charge therein against the defendant. (3) The said E. S. Ready, the prosecutor in the case, was the only witness examined by the grand jury, of which he was then a member, concerning the commission of the crime alleged in said indictment. (4) The said defendant was not held to answer said criminal charge or any other public offense, before said grand jury, and had no opportunity to object to the competency of said E. S. Ready as a member of said grand jury before he was sworn. (5) That the prosecuting attorney was present while the grand jury was deliberating on the charge contained in said indictment. (6) The proceedings of said jury in finding said indictment were otherwise irregular and contrary to law." The motion was overruled by the court.

Defendant asked for a continuance on account of the absence of Cora Dixon, a witness, by whom he expected to prove that he was at her house during the entire night in which the larceny was committed. The State admitted the truth of the matters set forth in the motion for continuance, and the motion was therefore overruled,

On the cross-examination of E. S. Ready, a witness for the State, certain testimony was elicited, tending to show that defendant committed the larceny. The court charged the jury as follows:

"1. The jury are instructed that where the possession of stolen property is shown to be in the defendant, it devolves on him to explain the possession, and his statements made in relation to such possession are all facts to be considered by the jury in arriving at a verdict."

"2. The ownership of property alleged to have been stolen is a material allegation in the indictment, and to convict the defendant as charged you must be satisfied from the evidence, beyond a reasonable doubt, that the watch alleged to have been stolen was the property of E. S. Ready, or that it was in his possession or control at the time of the taking."

"3. The jury are instructed that, before they can find the defendant guilty of grand larceny, it must be proved that he obtained the watch from E. S. Ready on the occasion alleged and in the manner described, or that he was present aiding and abetting another in the taking."

"4. The possession by a party of stolen goods is a fact from which his complicity in the larceny may be inferred, but this fact, standing alone, is not sufficient to sustain a conviction. It must be made to appear that the property was recently stolen, the possession must be unexplained, and in some form involve an assertion of property in the possessor."

"5. If the jury believe from the evidence that the defendant in good faith, for the purpose of restoring it to the owner, purchased said watch, knowing it to be stolen, and did so return it, he would not be guilty as charged."

The court further instructed the jury that the facts stated as the evidence of Cora Dixon were admitted by the State, and were to be taken as true; and that all the material allegations in the indictment must be proven beyond a reasonable doubt; and gave the usual charge upon reasonable doubt.

The following instructions were asked for by the defendant and refused by the court:

"1. The State must prove every allegation in the indictment beyond a reasonable doubt, and if the jury believe that the watch alleged to have been stolen was not the property of E. S. Ready, and that it was the property of some other person, you will acquit the defendant."

"2. If the jury believe that the defendant did obtain the watch from other parties, and returned it as early as convenient after he received the description of the watch, you will acquit him."

"3. If the jury believe that the defendant did, in good faith, purchase said watch, although he might at the time have believed it to be stolen, and that he returned it to the owner upon information to whom it belonged, then you will acquit the defendant."

The jury returned the following verdict: "We, the jury, find the defendant guilty as charged in the second count, and fix his punishment at three years in the penitentiary." The errors assigned by the defendant are stated in the opinion of the court.

Affirmed.

Sanders & Fink for appellant.

1. The court erred in overruling the motion for a continuance. The practice of allowing the State to admit facts which a defendant expects to prove by an absent witness deprives the accused of a substantial right--to have the witness before the jury under sanction of an oath. 50 Ark. 161.

2. It was error to sustain the demurrer to the second, third and fourth grounds of the motion to quash. Mansf. Dig. sec. 2098. 50 Ark. 534 is not in point.

3. The verdict is not supported by the evidence. There is no evidence that defendant received the watch with the felonious intent to deprive the owner of it. All the testimony shows that his purpose was to secure the watch, secure the reward and make reputation as a detective. This is not a crime. 50 Ark. 427; Mansf. Dig. secs. 1645, 1631.

4. The venue was not proved. If a crime was committed, it was in Monroe or Jefferson county, and sec. 1974 Mansf. Dig. was not applicable.

5. The State abandoned the charge of larceny, and it was error to charge the jury as to larceny.

6. The first instruction of the court is palpably erroneous. 37 Ark. 580; 43 id. 294; 45 id. 173; 45 id. 492; 49 id. 448; 50 id. 477; 52 id. 263. Mere possession of stolen goods is not presumptive evidence of guilt. Boykill v. State, 34 Ark. 443.

7. It was error to allow the State to ask defendant if he had been convicted for receiving stolen property in Texas. Mansf. Dig. sec. 2902; 52 Ark. 309, 310; 54 id. 626.

8. The court received the verdict in the absence of the attorney for defendant, and without having him called.

James P. Clarke, Attorney General, and Chas. T. Coleman for appellee.

1. Even if it were error to overrule defendant's motion for a continuance, there was no prejudice, as the jury virtually acquitted him of the larceny.

2. The motion to quash was properly overruled. 50 Ark. 542.

3. The instructions as to larceny were harmless, as the defendant was found not guilty of the theft. 54 Ark. 4.

4. The first instruction may be verbally inaccurate, but, taken in connection with the fourth, states substantially the law. 34 Ark. 444; 44 id. 41.

5. The right of one on trial for felony to be present at every substantial step in the progress of the trial is personal to the defendant, and does not extend to his counsel.

6. The question as to whether defendant had not been confined in the penitentiary of Texas, was not improper. Holder v. State, ante, and cases cited in that case.

7. From the proof the jury could have found that defendant was in collusion with the parties who stole it, and that he received it in Phillips county.

OPINION

HUGHES, J.

The demurrer of the appellee to the second, third and fourth grounds of appellant's motion to quash the indictment was properly sustained. There was no evidence to sustain the first and fifth grounds of the motion. The sixth ground was merely formal.

"Sec. 2098, Mansf. Dig., which provides that 'every person held to answer a criminal charge may object to the competency of any one summoned to serve as a grand juror, before he is sworn, on the ground that he is the prosecutor or complainant upon any charge against such person, or that he is a witness on the part of the prosecution,' applies only to persons held to answer criminal charges which have not been previously investigated and acted upon by a grand jury, and not to a person already indicted." Hudspeth v. State, 50 Ark. 534, 9 S.W. 1.

The appellant's motion for a continuance that he might procure the testimony of Cora Dixon was properly denied, as the appellee admitted that what the motion stated she would testify to was true, which related only to the question of guilt upon the first count of the indictment, upon which appellee was acquitted. He was not prejudiced by the refusal of the court to continue the cause for this witness' testimony.

The evidence of E. S. Ready tending to show that the appellant committed the burglary and larceny, after the admission by the appellee that what the motion for continuance stated Cora Dixon would swear was true, was, as the record shows, brought out on cross-examination by appellant's counsel, and he cannot be heard to complain of this.

It is urged that the court erred in giving the second, third and fourth instructions, which related to the count in the indictment for larceny. "An error in rejecting a prayer for an instruction is not prejudicial if it appears that the jury found a state of facts to which it would have been inapplicable." Farris v. State, 54 Ark. 4, 14 S.W. 924.

The court told the jury that the facts stated as the evidence of Cora Dixon were admitted by the State, and must be taken as true. This admission by the State was a virtual abandonment of the first count of the indictment.

The appellant contends that the first instruction for the State is erroneous, because it stated to the jury that the statements of the defendant...