Lovejoy v. State
| Citation | 36 S.W. 575,62 Ark. 478 |
| Parties | LOVEJOY v. STATE |
| Decision Date | 13 June 1896 |
| Court | Supreme Court of Arkansas |
Appeal from Prairie Circuit Court, Northern District JAMES S THOMAS, Judge.
Judgment reversed and cause remanded.
J. P Roberts, for appellant.
1. There is a total want of proof to sustain the verdict. 34 Ark. 632; 47 id. 567; 57 id. 567.
2. The third instruction given by the court on its own motion is not the law. It throws the burden on defendant to show his innocence by a preponderance of the evidence. The court should have given the second and third asked by defendant. An honest purchase of property cannot be criminal by reason of the price paid. The non-consent of the owner taking the property is not shown, and it cannot be presumed or inferred. The alleged owner testified in the case, and circumstantial evidence cannot be resorted to to prove it. 12 Tex.App. 481; 44 Ark. 39; 14 Tex.App. 49; 12 Am. & Eng. Enc. Law, 838.
E. B Kinsworthy, Attorney General, for appellee.
Appellant admitted that the cattle belonged to Wood, but claimed that he bought them from Conner, whom he thought to be the owner, and the burden was on him to show these facts, and the court properly so instructed the jury.
The appellant was convicted of the larceny of two heifers. There was proof on behalf of the state to the effect that the heifers were the property of one Wood, and that appellant had taken same and sold them, appropriating the proceeds to his own use; and the state endeavored to show that appellant knew that the property belonged to another when he sold same. The appellant, on the other hand, contended that he sold the heifers in good faith, believing them to be his own; and he introduced proof tending to show that he had bought the heifers from one Conner, who claimed to own the same.
The court gave the following instruction, to which appellant excepted: "(3) You are further instructed that if you believe, from a preponderance of the evidence, that the defendant took the cattle under the honest belief that he was the owner of them by virtue of having bought them from another person, and if you believe that said defendant acted honestly and in good faith in the matter, then you would be authorized to find him not guilty, although you may believe that the seller was not the owner; and it would be for you to say, from all the facts and circumstances proved in the case, as to whether he acted honestly and in good faith in the transaction."
The court correctly charged the jury as to the material allegations of the indictment, one of them being "that the defendant took the property with the felonious intent to deprive the owner of the use of it," and the court also correctly charged the jury that these allegations must be established "beyond a reasonable doubt." But the above instruction is in conflict with these. "Preponderance" and "reasonable doubt" are not synonymous terms. It is sufficient if the proof in the whole case raises a reasonable doubt as to whether the defendant took the cattle with a felonious intent. The state would not be justified in a conviction upon a preponderance of the evidence. Yet this instruction tells the jury "that, if they believe from a preponderance of the evidence that the defendant took the cattle under the...
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