Lewis v. State

• Decision Date: 27 June 1896
• Citation: 36 S.W. 689,62 Ark. 494
• Parties: LEWIS v. STATE
• Court: Arkansas Supreme Court

36 S.W. 689

62 Ark. 494

LEWIS v. STATE

Supreme Court of Arkansas

June 27, 1896

Appeal from White Circuit Court, H. N. HUTTON, Judge.

Judgment reversed and cause remanded.

J. P Roberts, for appellant.

1. The testimony does not sustain the verdict. Mays is not corroborated, except by Hamilton and Roberts, and only as to his statements to them before the meat was found, and in the absence of defendant, which was hearsay, and inadmissible. 1 Gr. Ev. (12 Ed.), 99; Rice on Cr. Ev., 370, 371; 11 Tex.App 388; 14 id. 49.

2. The fifth instruction should have been given. Defendant's explanation as to how he got possession of the meat was a reasonable one, and one which, if true, exonerated him, and the burden was on the state to prove the explanation false. 3 Gr. Ev. (8 Ed.), 161; 12 Tex.App. 385; 13 id. 499, 587; 34 Ark. 443; 12 A. & E. Enc. Law, 852.

3. The evidence is insufficient to warrant a conviction. 13 Tex.App 499; 44 Ark. 39; 13 S.W. 889.

E. B. Kinsworthy, Attorney General, for appellee.

1. The evidence is conclusive as to appellant's guilt.

2. May's describing the meat was simply admitted to show that he identified the same. It was not hearsay, but simply the statement of a fact,--of what they saw and found in possession of defendant.

3. The court properly refused the fifth instruction. The question was not how he came into the possession of the meat, but whether or not it was May's meat. If it was not May's meat, appellant was guilty.

OPINION

BUNN, C. J.

This is an indictment for grand larceny, tried in the White county circuit court. The trial resulted in a verdict for petit larceny, and defendant appeals.

The grounds upon which the verdict and judgment are asked to be set aside are: (1) That the same is contrary to the evidence; (2) that the court erred in refusing to give instruction No. 5 asked by the defendant; (3) because the court admitted, over the objection of defendant, the testimony of Hamilton and Roberts, to the effect that the defendant did identify or could have identified the stolen property by the description thereof previously given them by the owner.

There was evidence to sustain the verdict. How much, or how strong it was, it is improper for us now to say. There was no reversible error in refusing to give the instruction asked by defendant to the effect that, in order to convict, the evidence must exclude every other reasonable hypothesis than that of the defendant's guilt. It is true that this case is one of circumstantial evidence, and the rule sought to be invoked is applicable to and proper in such cases; yet this court has held, in effect, that the usual instruction on the subject of the...