Jones v. State

• Decision Date: 24 February 1908
• Citation: 108 S.W. 223,85 Ark. 360
• Parties: JONES v. STATE
• Court: Arkansas Supreme Court

108 S.W. 223

85 Ark. 360

JONES v. STATE

Supreme Court of Arkansas

February 24, 1908

Appeal from Lawrence Circuit Court; Frederick D. Fulkerson, Judge reversed.

Reversed and remanded.

John S Gibson and Morris M. Cohn, for appellant.

William F. Kirby, Attorney General, and Daniel Taylor, assistant, for appellee.

OPINION

MCCULLOCH, J,

Appellant was convicted of the crime of grand larceny, and now questions the sufficiency of the evidence to sustain the verdict.

He is charged in the indictment with having stolen a bull and two other cattle, the property of Dr. T. C. Neice.Dr. Neice, who lived at Walnut Ridge in Lawrence County, owned the cattle in question, and testified that they ran out in the range, and that in January, 1907, he found them, with three others which he owned, in appellant's possession in a stock-pen at Hoxie with other cattle which he(appellant) was in the act of selling to one Cousins, a cattle dealer, for shipment.Neice laid claim to the six head of cattle, and appellant disputed his claim, asserting that he had received them in a trade for other cattle with one Ellison.It was finally agreed between them (Neice and appellant) that Cousins should take the cattle and pay the agreed price, $ 90, to one McGraw, the same to be held by the latter until it should be ascertained upon investigation who was entitled to the money.There is a conflict in the testimony as to the precise terms of this agreement, but we do not consider this important.

Neice denied, in his testimony, that Ellison had any authority from him to sell or trade the cattle to appellant.He testified that he employed Elliston to get up his cattle, mark them, and take care of them, but that he did not authorize Ellison to sell them.He admitted, however, that, before he found the cattle in appellant's possession, Ellison informed him that he had traded them to appellant, and that he consented to let the trade stand.

Here is his account of the transaction, as related on the witness stand:

"The first I knew was when Walter (Ellison) came up and told me that he had got this bull up for me, and I went ahead and made the trade with the fellow at St. Louis, and I thought I had sold it to him.So, after we had delivered them at Hoxie and loaded them, we noticed he was not in the bunch, and when Walter came to the office I asked him what became of that red bull, that I thought he was in the bunch.He says: 'I traded him to Charlie Jones.I thought you would rather have something for him, and leave him out there.'I kind o' upbraided him for doing so, and he says: 'Well, I traded him any way, and got value of him all right.'I says: 'I told you to bring my cattle up here, but I guess I will have to let that go.'I says: 'Did you do any other trading?'He says: 'Yes, I traded six calves for the cow.'I says: 'I guess you know you traded my cattle?'He says: 'I got more than the value of them when I traded.'I says: 'Have you done more trading?'He says: 'Yes, sir.' "

He admitted also that he had shipped and sold the cattle that Ellison received from appellant in exchange for these in controversy.

Appellant and Ellison both testified that they traded these cattle.Ellison testified, too,...