Little v. State

• Decision Date: 21 June 1915
• Docket Number: 59
• Citation: Little v. State, 178 S.W. 374, 119 Ark. 430 (Ark. 1915)
• Parties: LITTLE v. STATE
• Court: Arkansas Supreme Court

178 S.W. 374

119 Ark. 430

LITTLE v. STATE

No. 59

Supreme Court of Arkansas

June 21, 1915

Appeal from Sebastian Circuit Court, Fort Smith District; John H Holland, Special Judge; reversed.

STATEMENT BY THE COURT.

Appellant was indicted, charged with the crime of stealing a cultivator, the property of Olin T. Brewer, alleged to be of the value of $ 15.The indictment was in correct form.He was convicted of the crime of petit larceny and prosecutes this appeal.

The proof on behalf of the State tended to show that one Brewer owned the cultivator and had owned the same for about six years.He left the cultivator at the place where he had formerly been in the mercantile business, standing out against the yard fence on a vacant lot.It was in good condition when he got it; had never been used; he had not sold the cultivator.He went to get a repair off of the same and it was gone.He saw Jesse Little and said to him "Jesse, I understand that you got my cultivator and I want you to bring it back home."Jesse told the witness that he wanted the wheels to make a wheelbarrow to haul fertilizer into the garden.The cultivator was taken in the day time.

This witness was asked the following question: "Q.Mr Brewer, did Floyd Little have a conversation with you a few days prior to the time the defendant is alleged to have taken the cultivator in which he asked you if he and the defendant could get the cultivator, and you told him that he could get all or any part of it."And answered: "I don't remember."

Many witnesses were introduced, testifying both on behalf of the State and the defendant, whose testimony was to the effect that the appellant about 2 or 3 o'clock in the afternoon took the cultivator off of the vacant lot where it was situated; that he carried it out in the middle of the street and fastened it to his father's wagon.While the was doing this, several parties were standing on the street laughing and teasing him about the cultivator.

Witnesses testified that it was an old cultivator and that several of its pieces were missing.One witness said that it had a tongue and a neck yoke.Another said that it had a tongue and he couldn't remember whether it had any other pieces or not.Another said it was an old piece of cultivator.One of the witnesses stated that the appellant stated in reply to a party who spoke to him about the cultivator, that he"was going to take the wheels to make a wagon to haul manure into the garden. "

Appellant offered to prove by his brother that prior to the taking of the cultivator he(appellant) requested his brother to see Mr. Brewer, the owner of the cultivator, and to ask him about the matter.That his brother did see Brewer, who told him "to take the cultivator or any part of it and do whatever he wanted to do with it."And that his brother told him (appellant) what Brewer had said.The court ruled that any conversation between Brewer and the brother of appellant concerning the taking of the cultivator was competent, but that it was not competent to prove that the brother afterwards communicated to appellant that Brewer had given him permission to take the cultivator; that such testimony was hearsay.Appellant objected and duly excepted to the ruling of the court, and made this ruling one of the grounds of his motion for a new trial.

Judgment reversed and cause remanded.

Covington & Grant, for appellant.

1.The elements of larceny are not present.The taking, to constitute larceny, must be done with the intent to steal--with a felonious intent.Kirby'sDig., § 1825;91 Ark. 492, 495.

2.The exclusion of the testimony of Floyd Little to the effect that he, at appellants' request, called on Mr. Brewer and asked him if they could have the cultivator, to which he replied that they could have all or any part of it, and that the witness told appellant what Brewer said, was reversible error.Supra.

Any evidence that would tend to show good faith on the part of appellant, would be competent.Supra;94 Ark. 324.

Wm. L Moose, Attorney General, and Jno.P. Streepey, Assistant, for appellee.

1.The intent with which appellant carried off the cultivator was a matter for the jury.The verdict is supported by the evidence.109 Ark. 138;Id....