Cravens v. State

• Decision Date: 23 May 1910
• Parties: CRAVENS v. STATE
• Court: Arkansas Supreme Court

128 S.W. 1037

95 Ark. 321

CRAVENS v. STATE

Supreme Court of Arkansas

May 23, 1910

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

Judgment affirmed.

L Hunter and W. W. Bandy, for appellant.

The verdict is not supported by the evidence. 34 Ark. 632; 70 Ark. 385. It is error for the court to charge the jury on matters outside the record. 72 Ark. 139; 44 Wis. 282; 74 Ark 210; Id. 256. Why should the same rule not be applied to prosecuting attorneys?

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

The remarks of the prosecuting attorney were not prejudicial. Newly discovered evidence which is merely cumulative is no ground for a new trial. 66 Ark. 523; 74 Ark. 377. The acts constituting due diligence must be specifically shown. 66 Ark. 314; 73 Ark. 528. Motions for a new trial on the ground of newly discovered evidence are addressed to the sound discretion of the trial court, and unless that discretion has been abused this court will not interfere. 34 Ark. 659; 41 Ark. 229. It must appear that appellant could not have learned of the additional evidence by the exercise of due diligence. 28 Ark. 121.

HART, J. Mr. Justice WOOD concurs in the dissent expressed in the opinion.

OPINION

HART, J.

This case is brought to this court by appeal on the part of the defendant, Deb Cravens, from a judgment of conviction in the Clay Circuit Court for the Eastern District of the offense of grand larceny, charged to have been committed by stealing a cow.

Will Crittenden for the State testified that the defendant, Deb Cravens, came to his house to purchase cattle and hogs, and that, while there, he asked defendant if he knew who had a stray cow. The defendant at first replied that he did not, but after studying a while said that some one had asked him about a stray cow. Crittenden gave defendant as good a description of the cow as he could. After four or five days the defendant came back with the description of the cow just as witness had given it to him on a piece of paper, which was signed by some one. That defendant consulted with him about taking the cow, saying that he had bought her from a man living down near Rector. Witness told defendant that the cow did not belong to him and that he did not know to whom she did belong. That, after some hesitation, the defendant carried the cow away with him. That the cow was what witness called red speckled, and her "other color dirty looking white."

E. P. Longley, for the State, testified that he was guardian for the Byrd children, minors; that among their property inventoried by him was a cow; that he would call the cow a spotted one, there being about as much red as white on her; that the cow was running out; that he inquired about her, and finally heard that the defendant, Deb Cravens, had a cow in his possession answering the description of the cow belonging to his wards; that he went to see Cravens and described the cow to him, when Cravens said: "I guess that cow is in my lot right now. You go look at her; and if she is yours, you can take her." Cravens was busy moving that day, and did not go back with witness. Langley found the cow in Cravens's lot and carried her home. He came up with Cravens, and he helped drive her a part of the way. The cow had been marked and dehorned. She was marked by one of her ears being cut sloping down from the head to the point, and the other sloping up from the head to the point. Witness could not say how much of either part was left. The thick part of the ear was left.

The defendant testified in his own behalf. He said that he had bought the cow from one Maury Keller down in the bottoms, and had driven her along the public highway to his home in town, where he kept her. He said that she jumped into his horse lot and hooked one of his colts, and for that reason he got one of his neighbors to dehorn her; that at the same time another of his neighbors marked her, she being unmarked at the time.

Other witnesses were introduced by the defendant who testified that they were present when he bought the cow. Other witnesses corroborated his statement about the cow being unmarked when he brought her home, and also about the marking and dehorning her.

In rebuttal the State introduced Ed Neely, who testified that defendant, after he was indicted for the larceny of the cow, said that he had done wrong in dehorning and remarking the cow. His brother, who was present, said that he understood the defendant to say the same thing about dehorning and remarking the cow, but that he might have been mistaken. That he and his brother, at the time, were riding in a wagon, which made a great deal of noise, and that defendant was on horseback alongside of the wagon.

The defendant denied this, and said: "I told them I was getting into a little trouble over the cow, and I guessed what the court would hold against me the hardest was for dehorning and marking her, but I thought she was mine then." He further stated that he did not tell them that he had remarked her. The State also adduced evidence tending to show that Maury Kellar was not in the country at the time the defendant claims to have purchased the cow from him. The defendant adduced other testimony which strongly corroborates his testimony, but it is not necessary to abstract it, for the principal contention of the defendant is that the testimony does not support the verdict. That is to say, he contends that the evidence adduced by the State, when considered in its strongest light, did not warrant the jury in finding him guilty of the larceny of the cow. While the evidence for the State is weak, we think it was sufficient to support the verdict. The defendant gave up the cow, and thereby admitted that she was the property of the prosecuting witness; but he claims to have purchased her, and this brings up the question of his good faith in that respect. The contention made by the defendant in this case is very similar to that made in the case of Douglass v. State, 91 Ark. 492, 121 S.W. 923, where a judgment of conviction was affirmed. In that case the court said: "When the stolen property is found in the possession of the accused, and he makes a distinct assertion of title and ownership thereto, it is evidence that he intended to convert the same to his own use, and to deprive the owner thereof. If he makes an explanation of his possession by claiming to be the owner thereof, then the question to be determined is whether such claim of ownership is made honestly and in good faith. If it is made honestly and in good faith, then no matter how mistaken the accused may be, he would not have that felonious intent from which larceny could be inferred. But, on the contrary, if the explanation of the possession and the claim of ownership of the property 'involve a falsely disputed identity or are based on fabricated testimony, then the inference of his guilt is strengthened,' and his complicity in the larceny is sufficiently established."

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