Johnson v. State

• Decision Date: 19 November 1923
• Docket Number: 254
• Citation: 255 S.W. 571,161 Ark. 111
• Parties: JOHNSON v. STATE
• Court: Arkansas Supreme Court

255 S.W. 571

161 Ark. 111

JOHNSON v. STATE

No. 254

Supreme Court of Arkansas

November 19, 1923

Appeal from Clark Circuit Court; James H. McCollum, Judge; reversed.

Judgment reversed, and cause remanded.

D F. McElhannon and McMillan & McMillan, for appellant.

J S. Utley, Attorney General, John L. Carter, Wm. T Hammock and Darden Moose, Assistants, for appellee.

OPINION

HART, J.

J. E. Johnson prosecutes this appeal to reverse the judgment of conviction against him for the crime of grand larceny, charged to have been committed by stealing a heifer from J. B. Boyd, in Clark County, Arkansas.

The first assignment of error is that the evidence is not legally sufficient to support the verdict.

According to the testimony of J. B. Boyd, in the fall of 1921 he owned a spotted heifer about two and a half years old, marked with a crop and two splits off of the left ear and a split in the right ear. The heifer ran on the range, but was at Boyd's home in Clark County, Arkansas, on Friday morning, about the 20th of October, 1921. On the next Friday morning Boyd found the heifer in the possession of Rube Gillam, a butcher and cattle buyer, in Hot Springs, Arkansas. Several other persons who knew the heifer identified her as the property of J. B. Boyd. Gillam gave the heifer up to Boyd, and the latter drove her to his home in Clark County.

Rube Gillam testified that he had bought this heifer from J. E. Johnson a week or ten days previously. This evidence, if believed by the jury, was sufficient to support a verdict of guilty against the defendant. But it is insisted that this testimony is overcome by the testimony for the defendant.

According to the testimony of the defendant himself and of other witnesses in his behalf, he bought the heifer in controversy from Cleve Turner in Clark County, Arkansas, during April, 1921. The heifer which the defendant bought from Turner was running on the range, and was allowed to run there until the latter part of October, 1921. At that time the son of the defendant and another boy drove in the heifer as the one which the defendant had bought from Turner some time during the previous spring. The defendant was not certain whether the heifer was the one he had bought from Turner, and sent for Turner to identify the heifer. The defendant and other witnesses for him testified that Turner identified the heifer as the one which he had sold to the defendant. The defendant then drove the heifer with other cattle to Hot Springs and sold them to Rube Gillam.

Cleve Turner was a witness for the defendant. According to his testimony, he admitted going over to Johnson's in the fall of 1921, and identifying a heifer which he had sold to Johnson during the previous spring. On cross-examination, however, he stated that, as soon as J. B. Boyd brought back the heifer in question from Hot Springs, he went to examine her, and found that the heifer was not the same one which he had sold the defendant.

The evidence of the defendant, if true, showed that he did not steal...