Duncan v. State

• Decision Date: 09 May 1938
• Docket Number: Crim. 4086
• Parties: DUNCAN v. STATE
• Court: Arkansas Supreme Court

117 S.W.2d 36

196 Ark. 171

DUNCAN v. STATE

Crim. 4086

Supreme Court of Arkansas

May 9, 1938

Appeal from Benton Circuit Court; J. S. Combs, Judge; affirmed.

Judgment affirmed.

H. G E. Beauchamp and Vol T. Lindsey, for appellant.

Jack Holt, Attorney General, and John P. Streepey, Assistant, for appellee.

OPINION

BAKER J.

Appellant was indicted on the 24th day of September, 1936, upon a charge of grand larceny. It is charged that J. P. Duncan and B. F. McComas, in Benton county, on the 1st day of July, 1936, did unlawfully, wilfully and feloniously steal, take and carry away $ 500 in gold, silver and paper money, the property of Sam Tolbert. The trial was had on September 28, 1937, and Duncan was convicted upon a trial, separate and apart from his co-defendant, McComas, and his punishment was fixed at three years in the penitentiary. Counsel for appellant says in his brief "We wish to present this appeal on behalf of the defendant under three distinct heads. First: Because the evidence clearly shows that there was no larceny committed as alleged in the indictment, and there is no evidence upon which a conviction could be had. Second: Because the court erred in refusing to direct the jury to return a verdict for the defendant at the conclusion of the state's testimony. Third: Because the court erred in refusing to give the one instruction requested by the defendant."

Although appellant has offered three subdivisions, or headings, under which the appeal is presented, the first and second of these subdivisions may be well combined into one, as any discussion of either one of these matters as designated must be a discussion of the other. Our consideration, therefore, of this case results in a discussion of the sufficiency of the testimony to warrant a conviction under the indictment, and in a determination of the propriety of the court's refusal to give the one instruction requested by appellant upon the trial.

We shall not attempt extensive quotations from the voluminous testimony offered and heard upon the trial of this case. It has become the settled law of this state that upon an appeal in a matter of this kind, the evidence must be considered in the light most favorable to the state, or if substantial testimony that may have been offered is sufficient in itself to support the verdict, the verdict must be upheld. Stated otherwise, whatever testimony there may be that is in conflict with that portion of the same which supports the conviction will be disregarded, and the jury's verdict will be deemed as conclusive upon the disputed issues. Link v. State, 191 Ark. 304, 86 S.W.2d 15; Clayton v. State, 191 Ark. 1070, 89 S.W.2d 732; Smith v. State, 194 Ark. 264, 106 S.W.2d 1019; Slinkard v. State, 193 Ark. 765, 103 S.W.2d 50; Tucker and Peacock v. State, 194 Ark. 528, 108 S.W.2d 890.

It is argued by the appellant that the evidence of the prosecuting witness, Sam Tolbert, is so flimsy, so unsettled and so disconnected that it should not be regarded as sufficient to support any verdict. We agree with the contention to the extent that the testimony is not altogether satisfactory; that the witness seemed to have a very bad memory; that some of his statements are conflicting with others made by him. While all this is true, it only furnishes a matter for argument, and it may have been made with propriety, to the jury upon the trial of the case. This jury had for consideration not only the words of the witnesses, but the appearance of the witnesses upon the stand. It is probable that many members of the jury knew these witnesses and the defendant, and they heard the explanation made by all of them. They might have believed, and probably did, that before the ex-soldier received his bonus money he was practically in charge of the appellant; that he went to live in appellant's home; that when the bonus money came appellant placed a small sum of money, which he had, together with the much larger amount belonging to this ex-soldier, in the bank to their joint account, and he immediately wrote a check upon it for $ 350 to buy a truck, which so far as this record discloses the ex-soldier could not use, and the ex-soldier was induced to give, in addition to this $ 350, a note for the balance due upon the truck, amounting to about $ 150. More than $ 200 of this bonus money was not deposited in the bank. Tolbert says that he saved this out, and that it was picked up by appellant, or, as he says, appellant "grabbed it," and did not redeliver this money to him. The jury had a right to believe this statement after it heard all...