Gilcoat v. State

• Decision Date: 13 November 1922
• Docket Number: 258
• Citation: 244 S.W. 723,155 Ark. 455
• Parties: GILCOAT v. STATE
• Court: Arkansas Supreme Court

244 S.W. 723

155 Ark. 455

GILCOAT v. STATE

No. 258

Supreme Court of Arkansas

November 13, 1922

Appeal from Arkansas Circuit Court, Southern District; Georqe W Clark, Judge; reversed.

Judgment reversed, and cause remanded.

John W. Moncrief, for appellant.

J S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.

OPINION

WOOD, J.

This is an appeal from a judgment of conviction of grand larceny on an indictment which charged the appellant, in two counts, of the crimes of grand larceny and receiving stolen property. The testimony for the State tended to prove that Wade Langham lived about four miles southwest of Dewitt, Arkansas, in Arkansas County. He owned a number of hogs which ranged about four miles from his home across Mill Bayou. His hogs were marked with a crop off the left ear and a swallow-fork in the right. Langham received information that some hogs that were marked with his mark were in a pen of an old chicken- house in the possession of the appellant. Appellant lived ten miles from Langham and about six miles from where the hogs had usually ranged. Langham, in company with some of his neighbors, went to appellant's home and identified the hogs as his property. Appellant was not at home when Langham first identified the hogs, nor on the day when he went and got them. Appellant lived in the edge of the timber. There was prairie between appellant's house and Langham's. Langham had not seen his hogs for about a month and a half before the appellant put them up. Langham had forty-seven head on the range and lost twenty-six. He got nine head of his hogs from the appellant on the 5th of November. If the hogs had gone straight, they would have gone over some prairie. Part of appellant's pen was walled up on three sides and the other side was wire. The hogs could not be seen from the highway. The appellant did not make any claim for the hogs. The hogs were not fresh marked, and they had not been in any way disfigured. One of the hogs was not marked at all.

The testimony for the appellant tended to prove that on one Sunday, while appellant and his brother were hunting, on returning home they noticed some hogs. Appellant thought the hogs belonged to one Mr. Brewer, and they drove them home and put them in the pen Sunday evening. Appellant killed two hogs on Monday, but they were his own hogs and marked with his own mark.

Brewer testified that he had some hogs to stray away, and that he met the appellant and told him about these hogs and about the mark. It was only a few months afterward that he heard about the appellant getting into this trouble. Witness told the appellant about this mark, but didn't know whether appellant remembered what he said the mark was or not.

Another witness testified that he met appellant in the fall of 1919 and the appellant inquired of him in regard to a mark that he was certain about and asked witness if witness knew Brewer's mark. Appellant said to witness, "I believe I have got a bunch of his (Brewer's) hogs in the pen," and described the mark, and asked witness if that was Brewer's mark, and witness told him that he didn't know, but it was something like that.

The court, in instruction No. 3, defined the word "feloniously" as follows: "* * feloniously, that is, the crime charged amounts to a felony, and the theft of one hog or six hogs is a felony under the laws of the State of Arkansas. A felony is any crime that incarcerates the wrongdoer in the penitentiary for some period of time; eight hogs, the personal property of this man, did steal, take and carry away. * * * To this indictment the defendant pleads not guilty; that casts upon the State the burden of proving the material allegations in the indictment, and that beyond a reasonable doubt. The material allegations in this indictment and in both counts of it is that the property was stolen in the first charge; that it was stolen by Wes Gilcoat; that the theft committed was felonious, and, if he stole them, that it was felonious, because there can be no theft of hogs under the laws of this State without it being a felony, and that the crime charged was committed within three years before the return of this indictment, which was returned upon the 18th day of January, 1922."

Instructions No. 6 and No. 7 are as follows:

"6. I have told you that, before you can convict this defendant, the State is required to prove his guilt beyond a reasonable doubt. A reasonable doubt is not an imaginary doubt, it is not a speculative doubt, it is not a captious doubt, it is not a fanciful doubt. A reasonable doubt means no more and no less than the words, simply a doubt for which as reasonable men you can give a reason."

"7. The State is not required to prove the guilt of any man to a mathematical certainty; everything depending upon human testimony is subject to some species of a doubt. To be convinced, within the meaning of the law, beyond a reasonable doubt, is that state of mind of the jurors, after a fair, impartial, unbiased consideration of all the testimony in the case, you have an abiding conviction to a moral certainty of the truth of the charge. If the evidence in this case convinces you that this property has been stolen and that this defendant received the property that was found in his possession, that makes a prima facie case of guilt where property has been recently stolen and possession is unexplained."

"10. The mere taking of property, whatever it is, where the indictment charges that the same constitutes a felony, that is grand larceny, is not sufficient to warrant the jury in returning a verdict of guilty. There must be an unlawful taking, there must be a felonious taking upon the part of the accused. Now, the State is not required to establish by parol testimony the intent of the accused in any case. A man is presumed under the law to mean the things that he does. He is presumed under the law to intend to do the things that he did do. You determine the intent of the individual by his acts and the proof in the particular case on trial. You cannot look down into a man's mind and say just with actual certainty what his purpose, intent and motives are in the doing of a thing, but you determine these things from the facts and circumstances in the case."

"11. I have previously told you what felonious intent meant as used in these instructions, and before you would be warranted in convicting the defendant you must further find, if he took the hogs, that he did so with the felonious intent of appropriating the same to his own use, and if he did that, that would constitute grand larceny, and that he intended to appropriate to his own use, that would constitute the depriving of the true owner of his property; one cannot be committed without the other."

The appellant presented the following prayers for instructions:

"1. The mere taking up of the property of another person without the consent of the owner does not constitute larceny. And before you could convict the defendant in this case it would be and is incumbent upon the prosecution to show beyond a reasonable doubt that the defendant unlawfully took the hogs with the felonious intent of depriving the owner thereof and of converting same to his own use. And if the prosecution fails to show the felonious intent beyond a reasonable doubt, it is your duty to acquit the defendant. Or if, upon the whole case, you have a reasonable doubt as to the intent of the defendant, you will not find him guilty."

"2. The defendant is presumed to be innocent of taking property with the felonious intent to convert to his own use, and this presumption attends and protects him throughout the trial, unless overcome by evidence proving guilt beyond a reasonable doubt."

1. Under the evidence the issue as to whether or not appellant was guilty of the larceny of Langham's hogs, as charged in the indictment, was one of fact for the jury, but this issue was not submitted upon correct instructions. The indictment in the first count charged the appellant with the crime of grand larceny committed as follows: "Eight hogs, the personal property of Wade Langham, unlawfully and feloniously did take, steal, and drive away." The court, in its third instruction, defined the word "feloniously" used in the indictment as follows: "* * * feloniously, that is, the crime charged amounts to a felony, and the theft of one hog or six hogs is a felony under the laws of the State of Arkansas. A felony is any crime that incarcerates the wrongdoer in the penitentiary for some period of time." Under our statute larceny "is the felonious stealing, taking, and carrying, riding or driving away, the personal property of another." Sec. 2483, C. & M. Digest. The word "felonious," as used in the statute, means that at the time of the taking and asportation there must exist in the mind of the taker the intent to convert or appropriate permanently to his own use the property of the other person. In other words, to constitute larceny the taking and asportation must be animo furandi.

The term "felonious," as employed in our larceny statute, is not used with reference to the kind and value of the property taken, nor to designate the punishment therefor. It is not for the purpose of distinguishing crimes that are punishable in the State Penitentiary and those not so punished, but it is used here to characterize the intent that must exist in the mind of the taker at the time of the taking and asportation. It must be a felonious intent as above defined. See Mason v. State, 32 Ark. 238; Douglass v. State, 91 Ark. 492; Gooch v. State, 60 Ark. 5, 28 S.W. 510--9; Fulton v. State, 13 Ark. 168; Jones v. State, 85 Ark. 360; Bailey v. State, 92 Ark. 216, 122 S.W. 497; Little v. State, 119 Ark. 430, 178 S.W....