Duckworth v. State
| Decision Date | 10 June 1907 |
| Citation | 103 S.W. 601,83 Ark. 192 |
| Parties | DUCKWORTH v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Ashley Circuit Court; George W. Norman, Special Judge reversed.
Judgment reversed and cause remanded.
Robt. E. Craig, for appellant.
1. Evidence of the possession of stolen goods is not admissible until it is proved by competent evidence that the goods were stolen. 91 Am. St. Rep. 21; 2 Bishop, Crim. Proc. § 739.
2. The sixth instruction is ambiguous. If its meaning is to instruct the jury on the wright of evidence of impeaching witnesses it invades the province of the jury; if it means that impeaching testimony can only be based on the general reputation of the witness sought to be impeached for truth or morality in the community where he lives, it is distinctly not the law. Kirby's Digest, § 3138; 53 Ark. 389. The fifth instruction is also erroneous. 34 Ark. 445; art. 7 § 23, Cons't.; 55 Ark. 244; 58 Ark. 576.
Wm. F. Kirby, Attorney General and Daniel Taylor, assistant for appellee.
Appellant's attack on the sixth instruction is farfetched. In the beginning of the sentence the jury are plainly told that the impeachment alluded to is that occasioned by the reputations of witnesses in the communities where they reside. It is clear and states the law. The fifth instruction, though unhappily worded, is in the first part an abstract statement of the law, and in the latter part submits the concrete facts to which the rules of law should apply. It is wholly hypothetical, and the court nowhere expresses an opinion as to the weight of evidence. 34 Ark. 443; 17 S.W. 1019; 6 Cold. (Tenn.), 9; 9 Tex.App. 288; 11 Tex.App. 503; 18 Cal. 382; 20 Cal. 177; 83 Cal. 374.
The grand jury of Ashley County, at the August, 1905, term of the Ashley Circuit Court, returned into court an indictment against W. A. Duckworth, Branch Duckworth and George Adams for burglary and larceny. The defendants moved the court to require the State to elect the offense charged in the indictment for which they should be tried. The court sustained the motion, and the State elected larceny. The defendants, W. A. and Branch Duckworth, were arraigned and pleaded not guilty, were tried and convicted. They moved for a new trial, upon a denial of which they appealed.
On the 28th day of January, 1905, George C. Malloy owned a small stock of goods, contained in a house at Milo, in Ashley County, in this State. On the night of that day the house was burned. What part of the goods, if any, was burned does not appear. A short time after the fire a small part of them was found in the possession of W. A. Duckworth. For stealing a part of these goods the defendants were indicted. The evidence of the guilt of the defendant, W. A. Duckworth, was circumstantial. We fail to discover any evidence of the guilt of Branch Duckworth.
Over the objections of the defendants the court instructed the jury in part as follows:
"5. The court instructs you that the possession of property recently stolen, unexplained, is evidence of the defendant's guilt, but it is not such evidence as must compel you to convict, but when such possession is corroborated by other evidence it is sufficient to convict; and if you believe from the evidence in this case that the defendants were found, immediately after the burning of G. C. Malloy's store, in possession of the goods, or of any part of the goods, in said store, and the possession is corroborated by other evidence tending to connect the defendants with the larceny, then you will find them guilty.
6. "The court instructs you that either side to a prosecution may introduce witnesses to impeach opposing witnesses as to the general reputation in the community where they live for truth and morality, but such impeachment does not set aside the evidence of the witnesses so impeached, but still leaves it for you to determine whether you will so accept the testimony of the witnesses so attempted to be impeached or the witness introduced to impeach him; and you are only to consider such testimony when you come to determine what credit you are to give to the testimony of such witnesses, and you may disregard the entire testimony of impeaching witnesses; and if you believe impeaching witnesses base their testimony on any ground except that of general reputation of witness impeached, in the community where he lives, for truth or morality, you may disregard in toto the impeaching testimony".
The defendants asked for instructions as to the sufficiency of circumstantial evidence to convict.
Instruction numbered 5 should not have been given. In Shepherd v. State, 44 Ark. 39, it...
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State v. Jones
... ... J. H ... Peterson, Atty. Genl., T. C. Coffin and Herbert Wing, Assts., ... Ed. S. Elder and N.D. Wernette, for Respondent ... "The ... court has no right to point out what inference may or should ... be drawn from particular facts in proof." ( Duckworth ... v. State, 83 Ark. 192, 103 S.W. 601.) ... Requests ... to charge which are in the nature of a special argument to ... the jury under the guise of instructions of law are properly ... refused. ( In re Dolbeer's Estate, 149 Cal. 227, ... 86 P. 695, 9 Ann. Cas. 795; Hussey v ... ...
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... ... 413, 216 S.W. 306; ... Alexander v. State, 128 Ark. 35, 193 S.W ... 78; Mitchell v. State, 125 Ark. 260, 188 ... S.W. 805; Sons v. State, 116 Ark. 357, 172 ... S.W. 1029; Reeder v. State, 86 Ark. 341, ... 111 S.W. 272; Thomas v. State, 85 Ark. 138, ... 107 S.W. 390; Duckworth v. State, 83 Ark ... 192, 103 S.W. 601; Gunter v. State, 79 Ark ... 432, 96 S.W. 181; Denmark v. State, 58 Ark ... 576, 25 S.W. 867; Blankenship v. State, 55 ... Ark. 244, 18 S.W. 54; Shepherd v. State, 44 ... Ark. 39; Boykin v. State, 34 Ark. 443 ... There ... is no ... ...
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... ... We have here the possession of recently stolen property, and ... explanations of that possession which are contradictory and, ... of themselves, calculated to arouse suspicion ... Shepherd v. State, 44 Ark. 39; ... Blankenship v. State, 55 Ark. 244, 18 S.W ... 54; Duckworth v. State, 83 Ark. 192, 103 ... S.W. 601; Douglass v. State, 91 Ark. 492, ... 121 S.W. 923; Wiley v. State, 92 Ark. 586, ... 124 S.W. 249; Jackson v. State, 101 Ark ... 473, 142 S.W. 1153; May v. State, 135 Ark ... 400, 205 S.W. 807; Long v. State, 140 Ark ... 413, 216 S.W. 306; McFall v ... ...
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Gilcoat v. State
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