McAllister v. State
| Decision Date | 28 February 1944 |
| Docket Number | 4330 |
| Citation | 178 S.W.2d 67,206 Ark. 998 |
| Parties | McAllister v. State |
| Court | Arkansas Supreme Court |
Appeal from Hot Spring Circuit Court; Thomas E. Toler, Judge.
Reversed.
Oscar Barnett, for appellant.
Guy E. Williams, Attorney General, and Oscar E Ellis, Assistant Attorney General, for appellee.
About 5:30 a. m., April 7, 1943, a police officer in Malvern, Arkansas, arrested one Richard Smith and placed him in a cell already occupied by appellant. A search of Smith, made by the officer, revealed that he had on his person seventeen dollars, which, after being counted, was returned to Smith. The officer testified that appellant was awake and watched him count the money; this was denied by appellant. About an hour after Smith was placed in the cell appellant (who was working out a fine) was taken from the cell and put to work cleaning up the jail. Still later in the morning he was taken out in the city and put to work on the streets. The chief of police being informed that the seventeen dollars belonging to Smith was missing, and suspecting appellant, went to the place where he was working to investigate. The chief testified that a search of appellant's person failed to disclose the money. At noon, when appellant was returned to the jail, he was questioned further, and finally stated that, while he was sweeping the jail that morning, he swept up a lot of paper, and that in with this paper he found one five-dollar bill and twelve one-dollar bills; that he spent forty cents for tobacco and apples. He thereupon delivered the remaining $ 16.60 to the chief of police. At the trial appellant testified that when he found the money he did not know to whom it belonged; that he had no intention of stealing it; that when the officers first searched him they did not tell him they were looking for the money, and he didn't know that they were, and therefore he made no statement concerning the money at that time; that he was asleep when the officer placed Smith in the cell; that there were four prisoners in the cell.
Appellant was charged on information with the crime of grand larceny; was convicted and sentenced to two years imprisonment in the penitentiary; and from the judgment prosecutes this appeal.
Among other instructions given at the request of the state, the court, over the objection and exception of appellant, gave instruction No. 2, as follows: "You are instructed that if you find from the evidence in this case, beyond a reasonable doubt, that the defendant found the money, alleged to have been stolen, at the time mentioned in the information, and converted the same to his own use without voluntarily attempting to find the rightful owner thereof, and that he gave the money up only after pressure from the officers, then you are told to find the defendant guilty."
The duty imposed upon the finder of lost goods was fully discussed in an exhaustive opinion delivered by Chief Justice McCulloch in the case of Brewer v. State, 93 Ark. 479, 125 S.W. 127, 128 L. R. A., N. S., 339, 20 Ann. Cas. 1378. After reviewing a number of authorities on the question, Judge McCulloch says:
In the Brewer case the trial court had given an instruction as follows: "If you believe from the evidence that the defendant found the pocket-book, and either knew or found out to whom it belonged, and on demand of the owner denied having it, or did not voluntarily return it to him, he would be guilty of larceny, and you should so find."
Applying the rule summarized by him in the above quotation, Judge McCulloch declared this instruction erroneous because it "conveyed to the minds of the jury the idea that if the defendant either knew or afterwards ascertained who the owner was and denied having the pocket-book, or failed to voluntarily return it, this made him guilty of larceny."
We think instruction No. 2 as given in the case at bar is subject to the same criticism as the instruction held erroneous in the Brewer case. Under this instruction the jury was authorized to convict, even though they should believe from the evidence that the original taking was without felonious intent, if followed by a felonious asportation.
We are of the opinion that the giving of instruction No. 2 by the court constituted a reversible error.
Freeman Scott, the officer who placed Smith in jail, testified as a witness for the state. . . . After the defendant had testified to the effect that he was asleep when Smith was placed in jail, Scott was recalled by the state, and testified in rebuttal that appellant was at the time awake and that he watched him count Smith's money. Cross-examining Scott on...
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...the jury the impression that defense counsel is being ridiculed. Davis v. State, 242 Ark. 43, 411 S.W.2d 531 (1967); McAlister v. State, 206 Ark. 998, 178 S.W.2d 67 (1944); Jones v. State, 166 Ark. 290, 265 S.W. 974 (1924). However, prejudice is not shown where the record reveals that the t......
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...upon counsel's knowledge and skill or as a suggestion of improper conduct on his part are reversible error. In McAllister v. State, 206 Ark. 998, 178 S.W.2d 67, we In the case of Western Coal & Mining Co. v. Kranc, 193 Ark. 426, 428, 100 S.W.2d 676, 677, Mr. Justice Butler, speaking for the......
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...unduly prejudice the defense. Davis v. State, 242 Ark. 43, 411 S.W.2d 531 (1967) (opinion on granting of rehearing); McAlister v. State, 206 Ark. 998, 178 S.W.2d 67 (1944); Jones v. State, 166 Ark. 290, 265 S.W. 974 (1924). See also Divanovich v. State, 271 Ark. 104, 607 S.W.2d 383 (1980); ......