Harrell v. State

• Decision Date: 07 December 1925
• Docket Number: 39
• Citation: 278 S.W. 45,169 Ark. 1038
• Parties: HARRELL v. STATE
• Court: Arkansas Supreme Court

278 S.W. 45

169 Ark. 1038

HARRELL v. STATE

No. 39

Supreme Court of Arkansas

December 7, 1925

Appeal from Faulkner Circuit Court; George W. Clark, Judge affirmed.

Judgment affirmed.

W D. Swaim, Lewis Rhoton and Geo. F. Hartje, for appellant.

H W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.

OPINION

WOOD, J.

Earl Harrell was indicted in one indictment for the offenses of grand larceny and receiving stolen property. The first count charged the offense of grand larceny, and the second count the offense of receiving stolen property knowing the same to have been recently stolen. It was charged in the first count that Earl Harrell in the county of Faulkner, State of Arkansas, on the 15th day of April, A. D. 1925, 150 bushels of cotton seed of the value of $ 100, 250 bushels of corn, of the value of $ 400, 180 bales of hay of the value of $ 75, a total value of $ 475, the personal property of B. D. Brockington, being then and there in the custody and possession and control of J. I. Summers, the sheriff of Faulkner County, Arkansas, did then and there unlawfully and feloniously steal, take and carry away, against the peace and dignity of the State of Arkansas."

John Mitchell testified that he lived in Faulkner County; that he had in his custody at the request of the sheriff of the county a certain crop consisting of 200 bushels of corn, 3,000 pounds of cotton seed and 180 bales of hay. The corn was worth from $ 1.35 to $ 1.50 per bushel. He placed the corn and the cotton seed in a crib, and the hay in a separate barn. He nailed a board across the door of the crib. C. S. Harrell, father of Earl, lived about thirty steps from the crib at the time the crib was destroyed by fire. Earl Harrell lived something like two miles from his father. Witness lived about 175 yards from C. S. Harrell. On a Sunday night in April, 1925, witness was aroused from sleep by some one screaming down at C. S. Harrell's. He went down there, and found that the barn containing the corn and cotton seed was on fire. The roof had not yet fallen in. In witness' opinion from his observation of the pile of corn when the barn fell in there were not more than 20 or 25 bushels of corn in the barn when it burned. Witness described to the jury the situation of the barn, and stated that he had nailed a plank across the crib door to make the same secure. When witness arrived there, the plank had been removed from the crib door. The fire occurred about twelve o'clock at night. Witness observed the tracks of a wagon in the lot, and traced these from under a wagon shed in front of the crib door and through the lot gate to the field gate. The barn was on the place occupied by C. S. Harrell about which there was a controversy between him and Brockington. In about five minutes after witness arrived Sam Ark came, and witness met Mrs. Harrell running toward the fire with a bucket. No one else was present at the fire but C. S. Harrell, his wife and Sam Ark.

The witness was asked the following: "Q. Did you hear a conversation at the fire between Sam Ark and C. S. Harrell as to the whereabouts of the team? A. Yes, sir. Q. Tell the jury what Mr. Ark said to Mr. Harrell and the response of Mr. Harrell to Ark's question." The appellant objected to the question. The court overruled the objection. The appellant saved his exceptions The witness answered: "A. Yes, sir. Q. You recall the conversation between Mr. Harrell and Mr. Ark? A. Yes, sir, with reference to the whereabouts of the wagon and team. Well, Mr. Ark asked him where his team was, when he got there. Q. What did Mr. Harrell say? A. He said one of his work mules was out in the field, and the other was out in the pasture. Mr. Ark also asked where the wagon was, and Harrell said, 'Well, just to tell the truth about it, my wagon and team is down at Mr. Dawson's.'"

Mitchell further testified that C. S. Harrell had only one wagon, and it had two inch tires. The corn in the crib was ear corn in the shuck.

Sam Ark testified and corroborated the testimony of Mitchell as to the appearance of the wagon tracks and also as to the conversation between himself and C. S. Harrell.

Neal Webb testified that he was a deputy sheriff of Faulkner County, and was called to C. S. Harrell's residence on the morning of April 13th. When he arrived, he didn't see any tracks in the lot. Something had been dragged over the tracks across the lot before witness got there, and also over the tracks to the pasture gate. At the lot gate witness picked up the track. It was a mule track on the left, and witness didn't notice any other track. The wagon track looked like a tolerably new wheel not quite two inches broad to a new three-quarter wagon. Witness followed the track all the way for two miles through the mud, and they were leading to the house. Witness became confused with a similar track going in the opposite direction. The wagon track had mashed the grass down, and witness could not tell for sure that it was the wagon track he started with, but now and then he would see it plain enough to identify it. Witness followed the track for a mile and three-quarters through the field, and struck the gap or gate where they came out; found the tracks all the way there, and witness discovered that the same track that went out came back. The same outfit went both ways into the field. In tracing the track witness and sheriff Summers picked up the mule track a quarter of a mile from the defendant's home-- the same track they had picked up down at the lot gate. The track led to Earl Harrell's house. Where the tracks crossed the branch there were some shucks that had fallen out that were not wet through. When they got to the branch they discovered the tracks and the shucks, and when they got to the house the wagon had turned into the lot, and had come back. They saw that it was the same wagon, and the same mule track. They also discovered about ten or fifteen bushels of corn in the crib, that looked as if it had just been thrown in. It was near the door of the crib. Witness didn't know whether there was any more corn in there or not. Witness examined the ruins of the fire which was still smoldering. Most everything had burned up. There were fifteen or twenty-five bushels of corn in the pile. Witness, in tracing the wagon tracks, found shucks within a quarter of where the barn burned.

J. I Summers testified that he was sheriff of Faulkner County, and as such process was placed in his hands for an attachment on the property described in the indictment, which he served and placed the property in the custody of John Mitchell, who was acting as witness' agent. Before the barn was burned on Sunday night, witness was notified that the property had been advertised for sale under an order of the court. Witness corroborated the testimony of Webb as to what he discovered when witness went to the place where the barn burned, and in tracing the wagon tracks. Witness stated that, in tracing the wagon tracks, when they reached the house of defendant, they found some corn in the rear end of his crib. Defendant told witness that he got that corn from Dawson, but later stated that he got it from his brother. The corn in the crib didn't look like Dawson's corn. Witness didn't know the kind of corn that he had attached of the property of Brockington. The ear of corn that witness picked up at C. S. Harrell's where the fire occurred was a nubbin, and the corn in the defendant's crib was very light corn. Witness saw the corn that Dawson had in the crib, and it didn't correspond with the corn witness found in the front part of defendant's crib. It was entirely different corn. The...