Blackshare v. State

• Decision Date: 18 April 1910
• Parties: BLACKSHARE v. STATE
• Court: Arkansas Supreme Court

128 S.W. 549

94 Ark. 548

BLACKSHARE v. STATE

Supreme Court of Arkansas

April 18, 1910

Appeal from Clay Circuit Court, Eastern District; Frank Smith Judge; affirmed.

Judgment affirmed.

L Hunter and Spence & Dudley, for appellant.

The property must have been stolen before defendant can be convicted of receiving stolen property. 8 So. 529; 32 Gratt 946; 34 Am. R. 799; 106 Ind. 272. Defendant must have known it to have been stolen. 118 N.W. 1042; 94 P. 218; 105 Minn. 217; 61 S.W. 1072. A verdict finding defendant guilty of receiving stolen property is insufficient to support a judgment or sentence. 44 So. 940; 54 Fla. 96; 43 So. 311; 55 Ga. 191; 38 La.Ann. 357; 67 P. 42; 135 Cal. 61. It is necessary to show that the intent to steal existed at the time of the taking. 103 Ala. 40; 16 So. 12; 15 Ala. 158; 14 So. 859; 15 Ark. 168; 46 Ia. 116; 96 Ky. 85; 27 So. 852; 49 Am. St. R. 287; 3 Cush. 235; 39 N.Y. 459; 64 N.C. 586; 55 S.W. 334; 20 Tex.App. 662; 21 Id. 579; 2 S.W. 808; 2 S.W. 888. A stray horse which has been such for years is not the subject of larceny. 36 Tex. 375; 38 Tex. 643; 12 Cox, Cr. Cas. 489; 43 Tex. 650; 63 Ind. 285; 30 Am. St. R. 214; 7 Tex.App. 470. In his remarks to the jury the prosecuting attorney should not be permitted to go outside the record. 44 Wis. 282; 48 Ark. 106; 74 Ark. 258. The party from whom appellant purchased these cattle was guilty, not of larceny, but of violating the estray laws only. Kirby's Digest, § 7869.

Hal L. Norwood, Attorney General, and W. H. Rector, Assistant, for appellee.

Taking a horse found estray upon the taker's land, for the purpose of securing a reward from the owner thereof, is larceny. 105 Mass. 163. It is larceny for one to take up an estray, intending at the time to convert it to his own use. 3 Park. C. C. 129; 63 Ind. 285; 85 Ind. 503; 53 Mo. 124; 28 Mo. 528. Cases are not reversed because counsel express an opinion about matters connected with the trial. 74 Ark. 256; Id. 491; 72 Ark. 613; 73 Ark. 458.

OPINION

WOOD, J.

The grand jury of the Eastern District of Clay County, at its January term, 1910, indicted the appellant, Lin Blackshare, for larceny and knowingly receiving stolen property, with the intent to deprive the true owner of his property, which indictment, omitting the formal parts, is as follows:

"Count 1.

"The grand jury, in and for the district, county and State aforesaid, under and by the authority of the State of Arkansas, accuse the person named in the caption hereof as defendant of the crime of larceny, committed as follows, towit: On the tenth day of June, 1909, in the district, county and State aforesaid, the person named in the caption hereof did unlawfully and feloniously take, steal and drive away two head of cattle of the value of dollars, of the value of dollars, and of the value of dollars, the property of A. W. Zoll, against the peace and dignity of the State of Arkansas.

"Count 2.

"The grand jury, in and for the district, county and State aforesaid, under and by the authority of the State of Arkansas, accuse the person named in the caption hereof as defendant, of the crime of receiving stolen property, committed as follows, towit: On the tenth day of June, 1909, said person named in the caption hereof did unlawfully, feloniously and knowingly receive into and have in his possession, with intent to deprive the true owner of his property, two head of cattle of the value of one hundred dollars, of the value of dollars, of the value of dollars, and of the value of dollars, the property of A. W. Zoll, all of which property had at the said time been stolen, and the said person named in the caption hereof, at the time of receiving and taking said personal property in his said possession, well knew that the same had been stolen; against the peace and dignity of the State of Arkansas."

The appellant was convicted upon the second count of the indictment which correctly charged him with the crime of receiving stolen property, knowing that the same had been stolen. The jury returned the following verdict: "We, the jury, find the defendant guilty of receiving stolen property, and fix his punishment at one year in the penitentiary."

First. It is contended by appellant that this verdict is insufficient to constitute a verdict of conviction for knowingly receiving stolen property because the verdict does not contain a finding that it was done knowingly. The following authorities support the contention that a verdict simply finding defendant guilty of receiving stolen property is not sufficient: State v. Whitaker, 89 N.C. 472; O'Connell v. State, 55 Ga. 191; Dreyer v. State, 11 Tex. Ct. App. 631; State v. Burdon, 38 La.Ann. 357; Miller v. People, 25 Hun 473; O'Neal v. State, 54 Fla. 96, 44 So. 940; Harris v. State, 53 Fla. 37, 43 So. 311; People v. Tilley, 67 P. 42, 135 Cal. 61. In all of the above cases except the one in 11 Tex.App. the verdict of the jury did not assess the punishment at imprisonment in the State penitentiary. In the case from New York (Miller v. People) the form of the verdict was: "We find the person guilty of receiving stolen goods, knowing them to be stolen." The charge was that the prisoner "feloniously" received, etc. The court held that the verdict was in form a special verdict, and was fatally defective in omitting the word "feloniously" which former decisions of that court had held to be essential. The form of the verdict in the case at bar is distinguished from the form of the verdict in all of the above cases except the Texas case in that the jury prescribe the punishment, showing expressly an intention to find the accused guilty of an offense punishable by imprisonment in the penitentiary. The verdict under consideration is not a special verdict.

"A special verdict is one which sets out the facts, leaving the court to draw therefrom the conclusion of law." Bish. Crim. Proc. § 1006. A general verdict "is a conviction of everything well charged in the indictment." 1 Bish. Crim. Proc. § 1006a. "A partial verdict is one of conviction as to a part of the charge, and acquittal or silence as to the residue." 1 Bish. Crim. Proc. § 1009.

The verdict in this case is a partial verdict upon the second count of the indictment and in the form of a general verdict on that count.

Mr. Bishop says: "The test is, that if the verdict sufficiently finds anything, whether for or against the defendant, judgment will be rendered on the one side or the other for what is thus found." * * * "The language of the verdict, being that of 'lay people,' need not follow the strict rules of pleading, or be otherwise technical. Whatever conveys the idea to the common understanding will suffice, and all fair intendments will be made to support it." I Bish. Crim. Proc. §§ 1004, sub. 5; 1005a.

In O'Neal v. State, 54 Fla. 96, 44 So. 940, supra, the form of the verdict was: "We, the jury, find the defendant (naming him) guilty of receiving stolen goods." The Supreme Court of Florida while holding the verdict to be a nullity in that case, announced a rule of construction which we approve, towit: "In a criminal case the verdict should be construed with reference to the indictment or information and the entire record, and if, when so construed, it is definite and clearly expresses the manifest intention of the jury, and is otherwise legal, mere inaccuracies of expression will not render the verdict void."

This court has heretofore adopted that rule of construction for verdicts. In Strawn v. State, 14 Ark. 549, the appellant was indicted for maiming Jesse Edwards, the offense being a felony under the statute. The same statute provided: "that if persons fight by mutual agreement, and one of them is maimed, it shall not be deemed maiming within the meaning of this act; but the parties shall be punished by fine and imprisonment as for an aggravated affray," etc. The latter offense was a misdemeanor, but embraced in the same indictment with the felony. The verdict was: "We, the jury, do find the within-named John Strawn not guilty as charged in the within indictment, but find that he and the within-named Jesse Edwards fought by mutual agreement." The prisoner moved in arrest of judgment, because the verdict, which acquitted him of the offense charged in the indictment, failed to show that he was guilty of any minor offense. Passing on the motion, this court, through Chief Justice WATKINS, said: "Certainly, it might have been proper for the verdict to have stated more explicitly that the accused was not guilty, as charged, of the offense of maiming, but that he and Edwards fought by mutual agreement, whereby the latter was maimed. But, looking at the indictment, the statute and the verdict as returned, the conclusion is reasonable, if not unavoidable, that such was the meaning and intention of the jury; and although the verdict does not state, in express terms, that Edwards was maimed, it will bear that construction, and was therefore sufficient to warrant the sentence."

In Fagg v. State, 50 Ark. 506, 8 S.W. 829, the appellant was indicted for murder in the first degree. The jury returned the following verdict: "We, the jury, find the defendant guilty of manslaughter, but can not agree upon the punishment." The court sentenced him as for voluntary manslaughter. This was assigned as error. Chief Justice COCKRILL, for the court, said: "The verdict did not designate the degree of manslaughter, nor assess the punishment. The duty of fixing the penalty therefore devolved upon the court. On conviction of murder the statute requires the degree of the offense to be found by the jury. It is not so as to manslaughter; it is only necessary that the court should have a certain guide to the intention of the jury. Verdicts receive a reasonable...