Duren v. State
| Decision Date | 18 December 1922 |
| Docket Number | 48 |
| Citation | 245 S.W. 823,156 Ark. 252 |
| Parties | DUREN v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Scott Circuit Court; John Brizzolara, Judge; reversed.
Judgment reversed and cause remanded.
I S. Simmons and Kincannon & Kincannon, for appellant.
J S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
Appellant, Aubrey Duren, was jointly indicted with Jack Searl by the grand jury of Scott County for the crime of burglary, alleged to have been committed by entering a building occupied by the Coca-Cola Bottling Company, a corporation, with intent to steal fifty cases of Coca-Cola of the value of sixty-five dollars, and three hundred cases of soda pop of the value of two hundred and fifty dollars, all the property of said Coca-Cola Bottling Company, and, on separate trial, appellant was convicted and sentenced to the penitentiary.
The only assignment of error urged on this appeal is that the evidence is insufficient to support the verdict. The house alleged to have been burglarized is situated in the town of Mansfield, in Scott County, and was occupied by the Coca-Cola Bottling Company, a corporation, as a warehouse or place of storage for the commodities which it had for sale, towit: soda pop and Coca-Cola. The building was in charge of a Mr. Gilliam, an employee, who, according to the testimony, went out with a truck for delivering soda pop and Coca-Cola in the morning and usually returned in the afternoon. Gilliam testified that, when he returned to the warehouse on the evening of February 9, 1922, he discovered that a glass in one of the back windows was broken, and that, being impressed with the fact that the breaking had occurred with an unlawful purpose on the part of some person to enter the house, he decided to watch that night for the intruder, and did so. The witness did not state the size of the glass, but said that about one-third of it was broken out, and that the cases of soda pop and Coca-Cola were stacked up against the wall, extending up to the window, part of it in reach of any one standing on the outside. Nearly all the cases were unbroken, but a few of them were open cases. The soda pop was next to the window, and extended partially over the front of the window. The witness stated that he had not observed the broken glass in the window until that afternoon when he came back with the truck; that he usually examined the premises every day and was satisfied that if the window had been broken prior to that day he would have noticed it. He testified that he secreted himself in the building that night, and that about nine o'clock he heard voices on the outside, one person saying to another "You watch for me," and that immediately a hand was extended through the broken glass and the person picked up a bottle of soda pop in his hand; that at that time he fired a shot at the intruder, who jerked his hand back through the glass and ran away. Witness went out then and discovered that Searl was the man who had reached through the window and picked up the bottle, and that appellant was the one who stood by.
Gilliam testified that some one had been there before and disturbed the cases, for he noticed that some of them had been turned around. He did not state that he missed any quantity, nor did he state when he observed the previous disturbance of the property, but...
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