Cook v. State

• Court: Arkansas Supreme Court
• Writing for the Court: MCCULLOCH, J.
• Citation: Cook v. State, 97 S.W. 683, 80 Ark. 495 (Ark. 1906)
• Decision Date: 12 November 1906
• Parties: COOK v. STATE

97 S.W. 683

80 Ark. 495

COOK v. STATE

Supreme Court of Arkansas

November 12, 1906

Appeal from White Circuit Court; J. H. Harrod & J. N. Cypert Special Judges; affirmed.

Judgment affirmed.

S Brundidge, Jr., and J. N. Rachels, for appellant.

1. The description was bad in the indictment, and it was error to allow proof to go to the jury to prove the loss and value. 32 Ark. 181; 29 Id. 68; 51 Id. 112. It should have alleged that some kind of gold, silver or paper money or some general description of the same, as required by § 1844, Kirby's Digest. 71 Ark. 418; 65 Id. 825; 60 Id. 141.

2. One crime can not be established by proof of another, and the testimony of Mrs. Goodrich was inadmissible. 38 Ark. 221; 45 Id. 165; 70 Id. 610.

3. The testimony of the accomplice was uncorroborated. 50 Ark. 544; 43 Id. 367; 58 Id. 353; 64 Id. 247; 75 Id. 540.

Robert L. Rogers, Attorney General, and G. W. Hendricks, for appellee.

1. Even if the description of the money is insufficient, the charge and evidence as to the Gin Seneca support a correction for grand larceny. 73 Ark. 401.

2. The testimony of Mrs. Goodrich was admissible as showing a plan to burglarize the store. Underhill, Cr. Ev. 108. See, also, 83 N. Y. p. 419.

3. The corroboration was sufficient. 76 Ark. 315.

OPINION

MCCULLOCH, J.

The grand jury of White County returned an indictment, containing two counts, against appellant, James Cook, charging him with the crimes of burglary and grand larceny. The indictment charged that on the 14th day of April, 1906, appellant committed the crime of burglary by breaking into the storehouse of R. J. Lyon & Son, a partnership, in the nighttime with intent to steal certain property of said R. J. Lyon & Son of the value of $ 25; and that he committed the crime of grand larceny by stealing $ 6 in money, a lot of canned goods of the value of $ 5, and twenty bottles of Gin Seneca of the value of $ 20, the property of R. J. Lyon & Son.

The trial jury returned a verdict, finding the defendant guilty of grand larceny, and fixed his punishment at one year in the penitentiary. Judgment was rendered accordingly, and he appealed to this court.

Appellant demurred to the larceny count of the indictment on the ground that it failed to describe the money alleged to have been stolen. He assigns error of the court in overruling the demurrer, and also contends that the evidence is insufficient to sustain the verdict because the kind of money is not described. The indictment describes it as "six dollars in money of the value of six dollars," without alleging the kind, whether gold, silver or paper, and the evidence goes no further than that in describing it. This is not sufficient, as the statute provides that "it shall not be necessary to particularly describe in the indictment the kind of money taken or obtained, further than to allege gold, silver or paper money." Kirby's Digest, § 1844.

This defect, however, was not fatal either in the indictment or proof, as other property of value exceeding the sum of $ 10 was alleged and proved to have been stolen. Johnson v. State, 73 Ark. 101, 83 S.W. 651. The undisputed testimony is that canned goods of the value of $ 1.50 and a quantity of Gin Seneca, a liquid compound used as a beverage, of the value of about $ 20, was stolen at the time alleged.

There is some conflict in the evidence as to the ownership of the Gin Seneca, but it is undisputed that R. J. Lyon & Son had some kind of ownership. The conflict extended only to the character of their ownership, whether general or special. Proof of special ownership will sustain an allegation of general ownership. Merrit v. State, 73 Ark. 32, 83 S.W. 330; McCowan v. State, 58 Ark. 17, 22 S.W. 955. It is undisputed that R. J. Lyon & Son had exclusive possession and control of the property, though there is some conflict whether it belonged to them or not.

Appellant was convicted mainly on the testimony of an accomplice in the crime, and he insists that there was not sufficient corroboration to warrant a conviction. Without rehearsing all the corroborating testimony in detail, we think it was abundant to sustain the conviction. Appellant and his two accomplices, together with several other companions assembled at a vacant house in the neighborhood of the scene of the crime on the night in question for the purpose of playing cards and having an "egg roasting," as they termed the entertainment. These three left the crowd about the same time, were absent a short while, and then returned about the same time, and one of them produced two...