Holcomb v. State, 4623
| Decision Date | 05 June 1950 |
| Docket Number | No. 4623,4623 |
| Citation | 217 Ark. 407,230 S.W.2d 487 |
| Parties | HOLCOMB v. STATE. |
| Court | Arkansas Supreme Court |
Herbert & Dobbs, Hot Springs, for appellant.
Ike Murry, Atty. Gen., Jeff Duty, Asst. Atty. Gen., for appellee.
A jury found appellant guilty of larceny of a cow, Ark.Stats. 1947, § 41-3917,--Pope's Digest, section 3140, and fixed his punishment at one year in the Penitentiary. From the judgment is this appeal.
For reversal, appellant contends that (1) the evidence was not sufficient to support the verdict and (2) that the court erred in giving the State's requested Instruction No. 2.
(1)
The evidence as to appellant's guilt was in the sharpest conflict. That on the part of appellant was to the effect that he, in good faith, purchased the cow in question from the owner, Mancel Robbins, the complaining witness, paid cash for her, and later sold the cow. The testimony on the part of the State was to the effect that Robbins owned the cow and never at any time sold the cow to appellant. Whether appellant had bought the cow from Robbins, as he claimed, or was guilty of larceny of the cow, as the testimony on the part of the State tended to show, presented a fact question for the jury.
We have reached the conclusion, however, that appellant's second contention, that the court erred in giving the State's Instruction No. 2, must be sustained.
Instruction No. 2 provides: 'You are instructed if you find from the evidence in this case beyond a reasonable doubt that the defendant Oscar Holcomb, was in possession of a cow recently stolen from Mancel A Robbins, and that possession is not explained to the satisfaction of the jury, such possession is sufficient to sustain a conviction of larceny.'
Appellant's objection was as follows: 'The defendant objects and excepts to the giving to the jury of State's requested Instruction Number 2 generally and specifically; generally, on the grounds that the instruction is not the law, and specifically, on the grounds that the instruction is vague, indefinite, general and uncertain; and, second, that it tells the jury that the defendant was in possession of a cow recently stolen from Mancel A. Robbins, when the evidence shows that possession of the cow was in possession of a man named Gregory at Morrilton, Arkansas; and the defense further objects to said instruction on the grounds that it inferentially tells the jury that the cow was stolen, when that is one of the points in issue in the case.'
We hold that the instruction was inherently wrong since, in effect, it was on the weight of the evidence and an invasion of the province of the jury.
In Sons v. State, 116 Ark. 357, 172 S.W. 1029, we said:
'We have held in repeated decisions that unexplained possession of property recently stolen constitutes evidence legally sufficient to warrant a conviction of larceny or of the crime of knowingly receiving stolen property; but that an instruction that such evidence is sufficient to sustain a conviction amounts to an instruction on the weight of the evidence and is, for that reason, an invasion of the province of the jury.
'In Duckworth v. State, 83 Ark. 192, 103 S.W. 601, the instruction told the jury that 'the possession of property recently stolen, unexplained, is evidence of the defendant's guilt,' and that, if such unexplained possession is corroborated by other evidence tending to connect the accused with the larceny, 'then you will find them guilty.'
'In Thomas v. State, 85 Ark. 138, 107 S.W. 390, the court charged the jury that: 'The possession of property recently stolen, unexplained, * * * would be sufficient, under this indictment, to sustain a conviction.'
'In each of those cases, we held that the instructions given were erroneous for the reason that they were on the weight of the evidence.'
In Mays v. State, 163 Ark. 232, 259 S.W. 398, 399, we said:
'The court gave over appellant's objection an instruction numbered 3, which advised the jury that...
To continue reading
Request your trial
-
Sims v. State
...least. The proffered testimony was sufficient to have made a prima facie case of larceny, and to support a jury verdict. Holcombe v. State, 217 Ark. 407, 230 S.W.2d 487; Lee v. State, 200 Ark. 964, 141 S.W.2d 842; Lee v. State, 200 Ark. 1189, 141 S.W.2d 845; Holland v. State, 198 Ark. 933, ......
-
Holcomb v. State
...offense. In an opinion rendered June 5, 1950, we reversed and remanded because an erroneous instruction had been given. Holcomb v. State, 217 Ark. 407, 230 S.W.2d 487. In the cited case it was said that the evidence would support the verdict. In the appeal now before us there was substantia......
-
French v. State
...to be an impermissible comment on the evidence. To the same effect, see Mays v. State, 163 Ark. 232, 259 S.W. 398; Holcomb v. State, 217 Ark. 407, 230 S.W.2d 487. More to the point, however, is our holding in Reno and Stark v. State, 241 Ark. 127, 406 S.W.2d 372, reaffirmed in State v. Jack......
- McGee v. Hatcher