Lewis v. State, 4685

• Decision Date: 24 March 1952
• Docket Number: No. 4685,4685
• Citation: 247 S.W.2d 195,220 Ark. 259
• Parties: LEWIS v. STATE.
• Court: Arkansas Supreme Court

Page 195

247 S.W.2d 195

220 Ark. 259

LEWIS v. STATE.

No. 4685.

Supreme Court of Arkansas.

March 24, 1952.

G. C. Carter and Mark E. Woolsey, Ozark, for appellant.

Ike Murry, Atty. Gen., Dowell Anders, Asst. Atty. Gen., for appellee.

HOLT, Justice.

An information based on § 41-3929, Ark.Stats.1947, charged appellant, Orlen Jasper Lewis, with the crime of larceny by bailee, in that said appellant 'did unlawfully and willfully and feloniously and knowingly receive, conceal, convert, keep and use the sum of $19,760.76 in gold, silver or paper money contrary to the provisions of the agreement and conditions under which the same was obtained, the said sum of money being then and there the property of L. E. Lewis, S. H. Sparkman, Irwin Anderson and Lester James, and the said Orlen Jasper Lewis came into possession of the said sum of money as bailee.'

The trial court (a jury having been waived) convicted appellant and fixed his punishment at a term of three years in the State Penitentiary. From the judgment is this appeal.

For reversal, appellant stoutly contends that he was guilty of no offense under the above statute, that it 'has no application whatever to the facts in the case at bar, whether as alleged in the Information and Bill of Particulars, or as developed in evidence; and this for the obvious reason that under these facts there was neither a bailee nor an embezzlement or larceny.' We hold that appellant is correct in his contention.

Section 41-3929 provides: 'Any person who shall lawfully obtain possession as bailee of any money, goods, vehicle, aircraft, chose-in-action, or property of any character or description, whether or not such possession was obtained gratuitously or for a consideration, and who shall thereafter knowingly receive, conceal, convert, keep, or use said property as above described contrary to the provisions of the agreement or conditions under which the same shall have been obtained, shall be deemed guilty of larceny to the degree depending upon the value of the property involved as fixed by law, and upon conviction thereof shall be punished as in cases of larceny.'

There appears to be little, if any, dispute as to the material facts, which are to the following effect: April 1, 1949, appellant, Lewis, entered into a contract in the amount of $198,000 with the United States to clear the reservoir for Hulah Dam in Oklahoma. Shortly thereafter, he began work under the contract and employed certain subcontractors and laborers. The subcontractors were L. E. Lewis, S. H. Sparkman, Irwin Anderson and Ed Foster and the laborers were Ernest Crooks, Lester James, Johnny Mason and C. T. Ruston, all of whom performed their work until July, 1949, when they complained to appellant that they had not been paid. Under the terms of appellant's contract with the Government, he was to receive under certain conditions payments as the work progressed to cover the amount of work completed. In addition to this contract, appellant was required to enter into a pay roll bond in the amount of $99,000 for the payment of labor and materials and a performance bond in the same amount guaranteeing performance of the contract.

These subcontractors and laborers told appellant they understood there was a check for $20,000 due him on the contract in the Tulsa office of the Government Engineers and offered to go with him to Tulsa to...