Appeal
from Garland Circuit Court, ALEXANDER M. DUFFIE, Judge.
Reversed.
STATEMENT
BY THE COURT.
Appellant
was indicted by the grand jury of Garland county, at the May
term, 1903, of the circuit court of said county, for the
crime of grand larceny, and was convicted of said crime upon
trial in said court on the 10th day of June, 1903. Judgment
and sentence was pronounced against him in said court on the
20th day of July, 1903, and he has duly presented an appeal
to this court.
The
indictment charged the crime of larceny against appellant in
apt words, and the property charged to have been stolen
consisted of two diamonds, alleged to be worth $ 400 each
and $25 in lawful United States money as the personal
property of one Valentine Haffner.
The
evidence in this case is, in substance, that one Valentine
Haffner was induced to bet his diamond rings, of the value of
about $ 800, and $ 25 in money, upon a foot race, and lost.
Said foot race was got up and managed by the notorious
"foot racers" at Hot Springs, Garland county
Arkansas. The foot racers consisted of a company of men, who
it seems from the evidence, were in a conspiracy to induce
men by trick and false and fraudulent representations to bet
money or valuable property upon foot races managed and
controlled by them in such a way that there was no chance to
lose, according to their representations, but in reality
there was no chance to win. It appeared that the appellant
Hindman, was one of these conspirators, and was the runner
for the company of foot racers. They made representations to
the effect that they represented a company of millionaires
who had much money to bet, and that they had found a man, one
Williams, who could beat Hindman--in fact, could beat any man
in the world in a foot race, and he was the man on whom
appellant was induced to bet. The scheme was that Williams
was to fall down in the race, and thus allow his antagonist,
Hindman, to win the race. This was prearranged and
understood, so that, while the appellant was assured of
winning, there really was no chance whatever for him to win,
but a certainty of his losing. With this assurance and belief
on the part of appellant, he made his bet, and, according to
prearrangement, the man Williams fell in the race, and
Hindman beat, and won the money, of which there was a large
amount at stake on the race. Haffner in his evidence said:
"I put my diamonds and money up, expecting that, if I
lost, the person with whom I bet would get them." After
the race was run, Haffner voluntarily gave up the diamonds
and money he had bet; acknowledged he was beaten. This was a
consent to the passing of the title to the property, and it
seems that he bet with that view.
Over
the objection of appellant, the court gave to the jury
instructions 3, 6 and 7, to which the appellant excepted, and
made the giving of them a ground of his motion for new trial.
Said instructions are as follows:
"3.
In this case, if you believe from the evidence, beyond a
reasonable doubt, that the defendant was a member of a
conspiracy having for its object and purpose the inducing of
whosoever they could to wager their money or property on sham
foot races; and if you further believe that the witness,
Valentine Haffner, was induced or persuaded by the defendant
or other members of the conspiracy to bet his money on such
race, and that he deposited them with Scott, a member of such
conspiracy, as stake holder, to abide the issue of a race
understood by Haffner to be honestly run or one fixed in his
interest, and that Scott received them, not as a bona fide
bet, but with intent that Haffner should lose them on a
fraudulent game concerted between himself, the defendant and
others, and they were so lost, with intent to fraudulently
convert to their own use--this was larceny, and you should
convict.
"6.
If you believe from the evidence, beyond a reasonable doubt,
that a conspiracy or confederation existed between the
defendant and others for the purpose of inducing people to
wager their money on foot races, the result of such races
being within the control of such conspirators, and that such
races were so devised and planned that those betting thereon,
who were not members of the conspiracy, would inevitably
lose, money thus obtained would be by larceny; and if Haffner
was induced to wager his property on such a race and lose it,
and the defendant participated therein, you should convict.
"7.
If you find from the evidence, beyond a reasonable doubt,
that it was not the intention of Haffner, when he deposited
his property with the stakeholder, Scott, to part with the
ownership therein, but merely to part with the possession for
the purpose of having it returned to him after a sham race,
or that he delivered it to the stakeholder for the purpose of
having it delivered to a bona fide winner; and if you further
find that Scott was a member of a conspiracy to induce
parties to bet on sham foot races, when the bettor had no
chance whatever to win, and that he received Haffner's
property with no intention of returning it, or of delivering
it to a bona fide winner, but for the purpose of feloniously
converting it to his own use, or the use of the members of
the conspiracy, and to deprive Haffner permanently of his
property; and you further find, beyond a reasonable doubt,
that the defendant was a member of such conspiracy, and was
present aiding and abetting in the taking of money under such
circumstances, he would be guilty of larceny."
The
following instructions were asked by appellant, and refused
by the court:
"4.
You are further instructed that to constitute larceny there
must be a wrongful taking of the property from another, and
if you find from the evidence in this case that the witness
Haffner parted with his property, meaning to relinquish his
possession and property interest in such diamonds and money
charged in the indictment, then the state has failed to make
out a case of grand larceny, and this would be true, although
you may further find from the evidence that the witness
Haffner, was induced to part with said property and the
possession thereof by fraud and misrepresentation on the part
of the defendant.
"5.
You are instructed that it is not every unlawful taking of
the personal property of another with or without his
knowledge or consent that amounts to larceny; so in this case
you cannot convict the defendant for larceny, as charged in
the indictment, unless you first find from the evidence, and
that beyond a reasonable doubt, that the prosecuting witness,
Haffner, did not, when he bet the articles of personal
property mentioned in the indictment and parted with their
possession, consent to part with the control, ownership and
possession thereof, although you may find that the parting
with the control, ownership and possession thereof was
obtained by fraud.
"6.
If you find from the evidence that the prosecuting witness,
Haffner, voluntarily bet the articles charged in the
indictment, on the foot race, meaning to receive the stake if
he won, and lose his property if he lost, then the defendant
is not guilty of larceny, although the race was fraudulently
run.
"7.
If the prosecuting witness, Haffner, consented to part with
the possession and title of his property, then the defendant
cannot be found guilty of larceny, no matter how fraudulently
said property may have been obtained from him.
"9.
One of the questions for you to determine in this case is,
was the property of the prosecuting witness, Haffner,
obtained by the defendant by the consent of said Haffner; if
it was so obtained, however, fraudulently, then the defendant
is not guilty of larceny as charged in this indictment.
"10.
If you should find from the evidence that there was a
conspiracy existing between the defendant and others to
obtain the property of Haffner by trick, but that the
property charged in the indictment was bet by him with one of
the conspirators, that he bet the articles and delivered them
to the stakeholder, meaning to receive the stake if he won or
lose his property if he lost, then you cannot convict the
defendant of any crime under this indictment.
"11.
To constitute the crime of larceny, there must be a trespass;
that is, the property must be taken without the consent of
the owner, coupled with the intent to steal the property so
taken. The crime of larceny cannot therefore be committed
when the property is taken with the consent of the owner,
however guilty may be the taker's purpose and intent.
"12.
If you find from the evidence that Haffner bet the money and
diamonds charged in the indictment upon a foot race, and
delivered the same to a stakeholder, with the intent and
purpose that said money and diamonds were to...
