Jenkins v. State

• Decision Date: 05 November 1917
• Docket Number: 216
• Citation: 198 S.W. 877,131 Ark. 312
• Parties: JENKINS v. STATE
• Court: Arkansas Supreme Court

198 S.W. 877

131 Ark. 312

JENKINS v. STATE

No. 216

Supreme Court of Arkansas

November 5, 1917

Appeal from White Circuit Court; J. M. Jackson, Judge; affirmed.

Judgment affirmed.

Brundidge & Neelly, for appellant.

1. The motion for continuance should have been granted. It was an abuse of discretion by the court as the testimony was material.

2. There was a fatal variance between the indictment and proof. The money was alleged to be the property of R. E. Kent cashier, and the proof shows it was that of the Bank of El Paso. It does not charge that the money was in Kent's possession as cashier or that he had a special ownership in it. 58 Ark. 37; 72 Id. 525; 70 Id. 165.

3. It was not proven that it was lawful money of the United States as alleged. 80 Ark. 97; 71 Id. 418.

4. It was error to permit witnesses to detail conversation had with defendant at the time of his arrest, subsequent to the robbery. It was not competent evidence.

5. There was misconduct of the jury. There was a set of Arkansas Reports in the jury room accessible to the jury and one of the jurors read the case of State v. Fox. This was prejudicial. 16 R. C. L. 301, 313; 103 Ark. 10. It devolved upon the State to show that no prejudice resulted. 26 Ark 323; 40 Id. 454; 57 Id. 8; 66 Id 545; 29 Id. 268; 44 Id. 120.

6. The record does not show that the jury were sworn. 37 Ark. 63; 34 Id. 257; 25 Id. 106; 45 Id. 143.

7. The verdict is contrary to the evidence and there is error in the instructions.

John D. Arbuckle, Attorney General, and T. W. Campbell, Assistant, for appellee; W. L. Pope, of counsel.

1. The continuance was properly refused. Due diligence was not shown. 100 Ark. 180; 130 Ark. 245; 94 Ark. 169. The evidence was cumulative merely.

2. There is no variance. The money was in the possession and custody of the cashier. 94 N.E. 857; 79 S.W. 691; 1 Strange 505.

3. There was proof that it was lawful money of the U. S. viz. gold, silver, currency, greenback, dollars and cents. Any of these is sufficient. 115 Ala. 80; 6 Ark. 292; 83 Ala. 51; 79 Id. 259; 23 Ind. 21; 25 Ark. 121.

4. The statements of appellant at the time of his arrest subsequent to the robbery were properly admitted. 102 Ark. 525; 105 Id. 72.

5. No misconduct of the jury was shown; the juror's affidavit was not competent. Kirby's Digest, § 2423; 130 Ark. 48; 109 Ark. 193; 130 Ark. 189.

6. The jury were properly sworn. 29 Ark. 17; 34 Id. 257.

7. The evidence is sufficient.

8. There is no error in the court's instructions. They state the law correctly. 64 Ark. 247; 86 Id. 23; 97 Id. 92; 79 S.W. 691.

OPINION

SMITH, J.

Harold and Ellis Jenkins are brothers, and were jointly indicted as accessories before the fact to robbery. Their trials were separate, but both were convicted, and they have each prosecuted an appeal to this court. The questions raised in these appeals are so similar that we dispose of them in a single opinion. The principals in the crime were D. F. Lemmons and John Quattlebaum, and the indictment alleged that it was committed by robbing R. E. Kent, cashier of the Bank of El Paso, of $ 1,700, lawful money of the United States, of the value of $ 1,700 and the ownership of the money was alleged to be in Kent as cashier of the bank.

Both Quattlebaum and Lemmons confessed their guilt, and testified at the trial that the Jenkins boys were parties to the conspiracy to rob the bank, although they were not present when the crime was committed.

There was a motion for a continuance in each case, on account of the absence of Harry Gans, who, if present, would have testified, according to the recitals of the motion, that he had talked with Quattlebaum about the case, and Quattlebaum had told him that neither of the Jenkins boys had advised or encouraged the commission of the crime, and neither of them had any part in it. In the motion filed in Harold Jenkins' case, it was recited that Henry Pearl, an absent witness, would testify that he was with Harold Jenkins on Friday and Saturday before the commission of the robbery, and that Jenkins was not with Quattlebaum or Lemmons on those days and had no conversation with them. This testimony was important because Quattlebaum and Lemmons had fixed Friday and Saturday as the time when the final details of the robbery were perfected.

It appears, however, that the sheriff made a non est return on the subpoena three days before the day of trial, and that the defendants knew the witnesses were not residents of the county to whose sheriff the subpoenas were issued, and no showing is made that the sheriff to whom the subpoena was issued and delivered could ever have served it. The motion recites that depositions can, and would be taken if time were granted and the case postponed to a later day in the term of the court.

This testimony appears to be largely cumulative to that of four witnesses who were present at the trial and did testify, and we can not say that the court abused its discretion in overruling the motion for a continuance. Holub v. State, 130 Ark. 245, 197 S.W. 277.

The real and difficult question in each of the cases is whether there was a variance between the allegations of the indictments and the proof in each case. Kent, the cashier, testified that the money stolen was the property of the Bank of El Paso, a corporation, and that it did not belong to him, and none of it was on his person; but he also testified that he was the officer of the bank in charge of the money, and that it was taken from the bank and out of his custody and possession by putting him in fear. It is earnestly insisted by counsel for appellant that the allegation of ownership being essential, there is a fatal variance, because the testimony shows the bank to have been the owner of the money, and not Kent, the cashier. This same question was raised in the case of State v. Montgomery, 181 Mo. 19, 79 S.W. 693, where the Supreme Court of Missouri decided that a clerk having possession of his employer's money has a sufficient ownership thereof to support an allegation of ownership in the clerk in an indictment for robbery.

This is a well considered case, and, in reaching the conclusion stated above, the court reviewed numerous authorities dealing with the characteristics of the crime of robbery which distinguishes it from other forms of theft, and the reasoning of the court is so cogent that we quote liberally from the opinion. It was there said: "The question presented by this record * * * is whether a clerk left in charge of, and intrusted with the care of, his employer's cash, with authority to sell his goods and make change out of the drawer, is not a person in whom the ownership of such money may be laid, as against a robber * * * The question is one of much practical moment. Mr. Mills bore a contract relation to Mr. Radford, by which, in consideration of his wages as clerk, the law, in the absence of an express agreement, implied a promise on his part to exercise care and prudence in the management of Mr. Radford's store in the course of his employment. Certainly the law imposed upon him the obligation of collecting the price of the goods he sold, and of accounting for the same. He was, for that purpose, intrusted with the cash register; and by virtue of his employment he was authorized to take money out of the register to make change when he sold an article, and was required to place his receipts in the register. He was an agent for hire, and Mr. Radford had, by the course of business adopted delivered to him the possession of the cash in the register, in law, as effectually as if he had gone through the most formal act of delivery. The delivery in this case, while not the transfer of the absolute title to Mr. Radford's money, was a transfer of its possession, with its accompanying temporary rights. Even bailees without reward have an interest sufficient to enable them to sue tort feasors, and to maintain trover against all strangers to the bailment who wrongfully invade their possession. Possession is prima facie evidence of right, and the party who seeks to dispossess should show a better title; and, moreover, the possessor sustains a responsibility to the true owner."

After citing the decision of the Court of Appeals of New York in the case of Brooks v. People, 49 N.Y. 436, to the same effect, the opinion of the Supreme Court of Missouri continues:

"The same question again arose on a statute in the same words in State v. Adams, 58 Kan. 365, 49 P. 81, and the court very aptly says: 'The characteristic of robbery, distinguishing it from other forms of larceny, lies in the violence inflicted on the person of one in possession of the property, or in putting him in fear of injury to his person. So far as the mere taking is concerned, the offense is neither greater...