Blankenship v. State

• Decision Date: 19 December 1891
• Citation: 18 S.W. 54,55 Ark. 244
• Parties: BLANKENSHIP v. STATE
• Court: Arkansas Supreme Court

18 S.W. 54

55 Ark. 244

BLANKENSHIP v. STATE

Supreme Court of Arkansas

December 19, 1891

APPEAL from White Circuit Court, GRANT GREEN, JR., Judge.

Reversed and remanded.

House & Cantrell for appellant.

1. If the evidence as to an alibi was sufficient to create a reasonable doubt in the minds of the jury, as to whether defendant was present, it was the duty of the jury, to acquit, and the jury should have been so charged. 39 Ohio St 215; Bish., Cr. Pro., sec. 1066; Whart., Cr. Ev., sec. 333; 46 Ark. 152.

2. The ownership of the property must be proved as alleged in the indictment. 42 Ark. 73.

3. The court invaded the province of the jury. They were the sole judges of the weight and credit to be given the testimony. Art. 7, sec. 23, Const.; 37 Ark. 592; ib., 193; 49 id., 448; ib., 153; 43 id., 294; 45 id., 172; 50 Ark. 483; 52 id., 263; 54 id., 621; 44 id., 39; 34 id., 39; 42 Ind. 354; 21 Tex App., 188; 28 id., 560; 72 Ala. 220; 65 Ga. 506; 12 Iowa 450; 79 Ill. 441; 65 Cal. 109-113; Thompson, Trials, sec 2287-2540; 59 Mo. 112.

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

1. The second instruction given on behalf of the State was proper. 34 Ark. 443; 44 id., 41; 54 Ill. 405; 103 Ill. 82; 36 Miss. 96; 52 id., 695.

2. The third instruction for the State is inaccurately drawn, yet the court elsewhere told the jury that they must acquit unless satisfied of defendant's guilt beyond a reasonable doubt.

3. The court's charge as to the variance between the allegation and proof of ownership of the property is questionable. See Gantt's Dig., sec. 1786; 32 Ark. 302; 2 Bish., Cr. Pro, sec. 723.

OPINION

BATTLE, J.

John Blankenship was indicted in the White circuit court for grand larceny and for receiving certain goods, knowing them to be stolen, with the intent to deprive the true owner thereof. The indictment contained two counts, he being charged with grand larceny in one and with receiving stolen goods in the other. The goods mentioned in both counts were alleged to be the property of J. P. Kirby and G. W. Leggett. The defendant was tried and convicted of grand larceny. He filed a motion for a new trial, which was overruled. He was then sentenced to the penitentiary for one year, and he appealed.

At the trial evidence was adduced tending to prove that the goods mentioned in both counts of the indictment were the property of J. P. Kirby and E. S. Leggett and were in the joint and equal possession and control of both of them. The defendant asked the court to instruct the jury that if the evidence showed that the goods alleged to be stolen were not the property of J. P. Kirby and G. W. Leggett, but of J. P. Kirby and E. S. Leggett, they should acquit the defendant unless it appeared from the evidence that J. P. Kirby, at the time the alleged larceny was committed, had the exclusive ownership or control of the property; but the court refused to so instruct, and instructed the jury "that the ownership of the property, as alleged in the indictment, was a material allegation," and that if they found from the evidence that the goods stolen were the property of a firm styled Kirby & Leggett, composed of J. P. Kirby and E. S. Leggett, instead of J. P. Kirby and G. W. Leggett, the variance between the allegation in the indictment and the evidence, as to the ownership, would be immaterial. In instructing the jury in this manner the court erred. There was no allegation in the indictment that the goods stolen belonged to a firm styled Kirby & Leggett, composed of J. P. Kirby and G. W. Leggett. The allegation was that they belonged to J. P. Kirby and G. W. Leggett. The ownership of the property should have been proved as alleged in the indictment. Scott v. State, 42 Ark. 73.

Appellee has cited State v. Jourdan, 32 Ark. 203, to sustain the instruction of the court. The indictment in that case contained two counts. In one count the defendant was accused of stealing a steer, the property of one M. G. Wainwright, and in the other he was charged with stealing an ox, the property of J. B. Atkinson. The defendant demurred to the indictment on the ground that it charged him with more than one offense. The question was, did the indictment charge him with more than one offense? This was the only question presented in that case. This court held that two offenses were charged in the indictment, and that the demurrer should be sustained. And then said in the opinion: "It seems, however, that, under a provision of the criminal code, an error in the indictment as to the name of the party injured is not fatal on the trial. Gantt's Dig., sec. 1786. Hence, it seems to be unnecessary now to add a second count to obviate uncertainty in the evidence as to the name of the party injured. " This was a dictum. Even if it was not a dictum, the court did not undertake to say how an uncertainty as to the party injured could be obviated according to the criminal code.

Section 1786 of Gantt's Digest is section 2111 of Mansfield's Digest, which is as follows: "Where an offense involves the commission, or an attempt to commit, an injury to person or property, and is described in other respects with sufficient certainty to identify the act, an erroneous allegation as to the person injured, or attempted to be injured, is not material." Assuming that this section is applicable to cases like this, an erroneous allegation as to the ownership of the goods stolen can only be cured by describing the alleged offense in other respects with such certainty as to identify the act. McBride v. Commonwealth, 76 Ky. 337, 13 Bush 337. There was no such description of the offense in the indictment in this case, and hence this statute did not relieve the State of the necessity of proving that the goods stolen belonged to J. P. Kirby and G. W. Leggett.

Evidence was adduced at the trial tending to prove that the defendant denied having in his possession any of the stolen goods, and that, immediately after this denial and soon after the larceny was committed, a part of them was found in his possession. Defendant introduced testimony to show that a part of the goods so found had been purchased by him, and that those which...