Barker v. State

• Decision Date: 23 September 1918
• Docket Number: 131
• Parties: BARKER v. STATE
• Court: Arkansas Supreme Court

205 S.W. 805

135 Ark. 404

BARKER v. STATE

No. 131

Supreme Court of Arkansas

September 23, 1918

Appeal from Miller Circuit Court; Geo. R. Haynie, Judge; affirmed.

Judgment affirmed.

Pratt P. Bacon, for appellant.

1. Appellant honestly believed that the steer was the one he owned and had bought from Williams. This phase should have been submitted to the jury on proper instructions, but the court refused. 98 Ark. 149; 97 Id. 153.

2. The court erred in amending No. 2. 71 Ark. 459; 128 Id 35.

John D Arbuckle, Attorney General, and T. W. Campbell, Assistant for appellee.

The evidence is ample and there is no error in the instructions. 78 Ark. 490; 89 Id. 24; 73 Id. 407; 26 Id. 334; 128 Id. 35, 38.

OPINION

HUMPHREYS, J.

Appellant was indicted, tried, convicted and sentenced to one year in the penitentiary in the Miller Circuit Court, June Term, 1918, for the crime of grand larceny.

The evidence on behalf of the State tended to show that in May, 1918, appellant took a steer owned by R. M. Pool out of the range on Beech Creek in Miller County, and sold it for $ 60.

The evidence on behalf of appellant tended to show that at the time he took the steer and sold it he believed it was a steer he had previously bought from E. P. Williams.

Appellant insists that the court erred in refusing to give instructions Nos. 5 and 6 requested by him for the reason that these instructions presented his phase of the case to the effect that he took and appropriated the steer through an honest mistake. Each instruction embodied a correct statement of the law as applied to appellant's phase of the case, but the substance of each was contained in the second paragraph of the general instruction given by the court which is as follows: "The court will further tell you, gentlemen of the jury, that the intent to steal is the gist of the crime charged against the defendant, and before you can convict him you must find from the evidence beyond a reasonable doubt not only that the steer in question was the steer of the witness R. H. Pool, but that the defendant at the time he took it did so with the intention of stealing it. * * *"

Appellant also insists that the court erred in refusing to give instruction No. 2 on reasonable doubt in the form requested by him. As requested it was as follows:

"The court instructs the jury that the burden is on the State to prove the defendant guilty as charged in the indictment; and if the evidence fails to satisfy your minds beyond a reasonable doubt of the guilt of the defendant, then it is your duty to give him the benefit of the doubt and acquit him. If any reasonable view of the evidence is or can be adopted, which admits of a reasonable doubt of the guilt of the defendant, then it is your duty to adopt such view of the evidence and acquit the defendant."

The court struck out the last sentence and gave the instruction as modified. The sentence stricken out...