Graham and Seaman v. State

• Decision Date: 14 November 1938
• Docket Number: 4104
• Citation: 121 S.W.2d 892,197 Ark. 50
• Parties: GRAHAM AND SEAMAN v. STATE
• Court: Arkansas Supreme Court

121 S.W.2d 892

197 Ark. 50

GRAHAM AND SEAMAN v. STATE

4104

Supreme Court of Arkansas

November 14, 1938

Appeal from Sebastian Circuit Court, Fort Smith District; J. Sam Wood, Judge; affirmed.

Judgment affirmed.

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

OPINION

DONHAM, J.

The Prosecuting Attorney of the Twelfth Judicial Circuit filed information against appellants in the circuit court of Sebastian county accusing them of the crime of stealing cattle. They were convicted and Graham's punishment was fixed by the jury at five years in the penitentiary, and Seaman's at three years in the penitentiary.

It was alleged in the information that the appellants on the 14th day of December, 1937, in the county of Sebastian, state of Arkansas, did unlawfully and feloniously steal, take and carry away, one cow, the property of the Fort Smith District of Sebastian county.

Motion for new trial was filed and overruled and appellants have appealed.

For reversal appellants contend: (1) That the evidence is not sufficient to sustain the verdict; (2) that the court committed error in refusing to grant the petition of appellants for severance; (3) that the court committed error in refusing to give appellants' requested instructions (4) that the court committed error in giving appellee's instructions.

Without setting out the evidence of the several witnesses in detail suffice it to say that we have carefully reviewed the record and find that the evidence is sufficient to sustain the verdict of the jury.

As to the second assignment of error of appellants, being the one with reference to refusal of the court to grant their motion to sever, the statute, § 3976 of Pope's Digest, settles their contention in this regard against them. This section is as follows: "When two or more defendants are jointly indicted for a capital offense, any defendant requiring it is entitled to a separate trial; when indicted for a felony less than capital, defendants may be tried jointly or separately, in the discretion of the trial court. When separate trials are ordered in any case, the defendants shall be tried in the order directed by the court."

It is not shown that there was any abuse of discretion on the part of the court.

Appellants next contend that the court erred in overruling their requests for instructions. There are some instructions in the record denominated "defendants' instructions refused." But the record does not show that the trial court made any ruling as to these instructions. The bill of exceptions recites that the only instructions asked, given or refused were the ones requested by the state. The record is not sufficient to present this contention of appellants to the court. Boatright v. State, 195 Ark. 611, 113 S.W.2d 107. Besides the record does not show that there was any exception to the refusal of the court to give said instructions, if the court did refuse to give them.

It is true that at the end of the testimony for the state appellants asked the court for a directed verdict of not guilty. If, however, the evidence was sufficient to sustain the verdict of the jury, and we hold it was, of course, there was no error in...