Holub v. State
| Decision Date | 09 July 1917 |
| Docket Number | (No. 98.) |
| Citation | 197 S.W. 277 |
| Parties | HOLUB v. STATE. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, St. Francis County; J. M. Jackson, Judge.
Frank Holub was convicted of grand larceny, and he appeals. Affirmed.
On the 26th of March, 1917, appellant was indicted by the grand jury of St. Francis county for the crime of grand larceny. The indictment, in correct form, charged him with the larceny of a hog, the property of one O. Jordan.
The case was called for trial on April 4th thereafter, and appellant filed his motion for a continuance, in which he set up that immediately upon being arrested on the charge in the indictment he proceeded with due diligence to have subpoenas issued for all the witnesses desired by him; that one of the witnesses was John Toms; that he caused a subpœna for this witness to be directed to the sheriff of Mississippi county, where defendant was informed and believed that Toms resided; that the subpoena had not been returned, but defendant was informed that the sheriff of St. Francis county had been advised by the sheriff of Mississippi county that the subpoena had not been served on Toms; that the sheriff of Mississippi county had not used due diligence to serve the subpoena; that defendant believed that Toms was residing within about a mile of Blytheville, in Mississippi county, and could easily be found; that defendant believed if Toms were present he would testify that defendant purchased from him (Toms) the sow that defendant is charged with having stolen in good faith and paid full value therefor; that Toms was not absent with the consent and connivance of the defendant, but, on the contrary, the defendant had endeavored to assist the officers in the location of the witness, and believed that the witness could be easily found; that the facts were material to his defense. The defendant verified the motion by stating on oath that the facts set forth were true as he verily believed. The court overruled the motion.
After ten jurors had been accepted by both parties to try the case counsel for the state was granted permission to introduce testimony on the motion for a continuance. Counsel for defendant objected, which objection was overruled, and to which ruling the defendant duly excepted.
A deputy sheriff of St. Francis county testified, on behalf of the state, on the motion for continuance, that he talked over the phone to the sheriff's office in Mississippi county, and the party to whom he talked represented himself to be the chief deputy in charge of the sheriff's office. Over the objection of appellant, the witness was permitted to state that the party to whom he talked said that he could not locate Toms and had returned the subpœna non est. The conversation occurred after the subpoena had been forwarded to the sheriff of Mississippi county, and after the non est return had been made.
The clerk of St. Francis county testified that he issued two subpoenas for John Toms, directed to the sheriff of Mississippi county. He mailed one to the sheriff at Blytheville, and delivered the other to defendant at his request. When the defendant asked for the subpoenas he stated that John Toms was at or near Blytheville, and that witness put such information in the subpoenas. Holub asked witness for the subpoenas before the case was set, and witness told him that he could not issue them until the case was set for trial, and he came back the next day, immediately after the case was set, and asked for the subpœnas.
J. D. Holmes testified on behalf of the defendant in support of the motion for continuance that he was acquainted with John Toms; had known him all of witness' life. Toms was at Blytheville when witness left there a month or so before, and was there a week ago, according to a letter witness received from him. Witness had not been at Blytheville nor seen Toms in a month, and did not know personally where he was nor where he had been for the last month.
The court then overruled the motion, and appellant excepted to the ruling on the ground that the testimony on the motion was taken at a time when ten jurors had been selected to try the case and in their presence.
The testimony on behalf of the state tended to show that the sow appellant is alleged to have stolen was the property of one O. Jordan, who purchased the same from one Sardin. The sow was about four years old and was marked in Sardin's mark. Sardin sold the sow to Jordan in September. The last time he saw her was on Friday after the Sunday when it was alleged that she had been stolen. Three or four days before the Friday mentioned the sow was at witness' place, and witness put her up in his stable, and Jordan, the owner, came down and got her. Other parties owned hogs of the same kind in the same community. It was not an uncommon stock.
Jordan testified that he lost the sow, describing her. He bought her from Sardin and took her to his home and put her up. She broke out in three or four days, and witness went to Sardin's looking for her, and got information that she was at Holub's. He went to Holub's and told him that he wanted to see the sow that he had caught on the prairie. Holub told witness that she was in the barn. He found the sow in a box stall in the back of the barn. He told Holub that it was the sow that witness had bought from Sardin. Holub replied that he bought her from John Toms. Witness told Holub to bring the sow to witness' lot. Holub replied that he did not get her there, and he would not do so. Holub did not say anything about a bill of sale at that time. Witness got out replevin papers and was present at the time they were served. Holub said that he had just got back from where he had gone to see two parties who had witnessed a bill of sale for the sow when he (Holub) purchased her from Toms; that these two witnesses had been down to his place to look at the sow, and they identified her as the same sow that he bought from Toms.
Other witnesses corroborated the testimony of witnesses Sardin and Jordan as to the identity and ownership of the sow in Jordan, and as to Holub's having her in his possession.
Another witness who testified on behalf of the state stated that Holub came to witness' house on the 25th of March, 1917, on Sunday morning inquiring for cattle. Witness told Holub that he had not seen the cattle, but that there was a black sow there. Holub asked witness to go with him to look at the sow. Holub claimed the sow as his property. Holub came back, and two other men with him, and they took the sow. Holub said that he had hogs gone that he had not seen since last summer; that four had gone off at the same time; had not seen any of them until that morning. The place where Holub caught the hog that morning was a little over a mile from Holub's house. When Holub came back to witness' house after the sow he came in his wagon. They ran the hog out in the open, along the public road, where people could see them; no effort to conceal anything. Holub saw another man there, but did not stop trying to catch the hog.
Two witnesses testified that they were present when Toms sold Holub some hogs, a black sow and three shoats; that it was in June, 1916. They stated that a bill of sale was executed which they witnessed. A purported bill of sale was introduced. It recited as follows:
"This certifies that I, John Toms, did sell to F. E. Holub, this day, the following described hogs: One black sow about two years old, weighing 185 pounds, three head of shoats, weighing about 80 pounds each, for a consideration of $25.50; said hogs are...
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