Denmark v. State

• Decision Date: 17 March 1894
• Citation: 25 S.W. 867,58 Ark. 576
• Parties: DENMARK v. STATE
• Court: Arkansas Supreme Court

25 S.W. 867

58 Ark. 576

DENMARK v. STATE

Supreme Court of Arkansas

March 17, 1894

Appeal from Johnson Circuit Court, JEREMIAH G. WALLACE, Judge.

Reversed and remanded.

The appellant, pro se.

1.The court erred in instruction No.1 on its own motion.34 Ark 443;72 N.C. 482.It also invades the province of the jury.Art. 7, sec. 23, const.;49 Ark. 117;Ib. 439;52 id. 262; 39 id. 585;45 id. 172.

2.It was error to give instruction No. 2.It is only in cases where the possession is so recent after the theft that it is unlikely that possession could have been obtained legally that there is a presumption, and this is a presumption of fact, not of law.No presumption of any kind arises from the possession of the proceeds of stolen property.It also invades the province of the jury.

James P. Clarke, Attorney General, and Chas. T. Coleman, for appellee.

1.The first instruction substantially states the law.34 Ark. 444;44 id. 41.

2.Under the circumstances of this case the second was not erroneous.

OPINION

BUNN, C. J.

Defendant was indicted and tried at the December term, 1893 of the Johnson circuit court, for the crime of stealing a grey mare from one Rowland Crawford of that county, on the 15th July, 1893.He was convicted and sentenced to five years imprisonment.Motion for new trial overruled, and appeal taken.

It seems that one Johnson Townly, and probably others, were at the same time under indictment in the same court for the same offense; and he was made State's witness against defendant.His testimony, therefore, is treated as that of an accomplice.He claims to have been an agent of defendant in selling horses and mules for him, and that, among others, he received the mare in controversy from defendant, and traded her off for him, not knowing she had been stolen, and, after several successive exchanges and swaps of animals and other property, turned the proceeds over to defendant.This is enough of the evidence perhaps to enable us to understand the purport of the two instructions complained of by defendant in the fourth ground of motion for new trial.

These instructions are as follows, to wit: (1.)"If the jury believe from the evidence that Townly was proved to have had possession of the mare recently after she was stolen, and such possession is unexplained by his own testimony, or other testimony in the case, this is a strong circumstance tending to show that Townly stole the mare, and they will acquit the defendant, unless the evidence tends to connect him with the commission of the offense."(2.)"If the jury believe from the evidence that Townly took the mare to Sebastian county recently after she was stolen, and swapped her for a mule, and then sold the mule to O. B. Donalson, and they further believe that Townly paid the proceeds of the sale of the mule, or any part thereof, over to the defendant, that would be a circumstance, if unexplained, to be considered by the jury as tending to prove his guilt; and if such circumstance, considered in connection with all other facts and circumstances in proof in the whole case, satisfies the minds of the jury of defendant's guilt, it would be their duty to convict."

"Possession of property recently stolen, without reasonable explanation of that possession," it is said in Boykin v State, 34 Ark. 443, "is evidence of guilt to go to a jury for their consideration.In this sense, it is prima facie evidence, but not in the sense that it is such evidence as must compel the jury to convict, unless it be rebutted."In the sense that it may authorize the verdict of guilty, it seems to be of very...