McClellan v. State

• Citation: 156 S.W.2d 800,203 Ark. 386
• Decision Date: 15 December 1941
• Docket Number: 4236
• Parties: MCCLELLAN v. STATE
• Court: Supreme Court of Arkansas

156 S.W.2d 800

203 Ark. 386

MCCLELLAN v. STATE

4236

Supreme Court of Arkansas

December 15, 1941

Appeal from Baxter Circuit Court; John L. Bledsoe, Judge; affirmed.

Judgment affirmed.

Jack Holt, Attorney General, and Jno. P. Streepey, Assistant Attorney General, for appellee.

OPINION

MEHAFFY, J.

The appellant was tried and convicted of grand larceny, and his punishment was fixed by the jury at one year in the penitentiary. To reverse this judgment, this appeal is prosecuted. The appellant has filed no brief.

Herschel Russell testified in substance that he had lived at Iuka Izard county, for twelve or thirteen years; in 1938, he owned a few cattle; that one of the steers was taken the latter part of July or the first of August; witness lives about a quarter of a mile from the line between Izard and Baxter counties.

Virgil Killian testified in substance that he was acquainted with appellant; that in 1938, he owned some cattle; that one heifer was stolen; it was taken to West Plains by Albert Pickens and appellant; witness went with a man to appellant's house to investigate; as they approached the house appellant was on the porch, but before they got there appellant went through the house and was gone 30 or 40 minutes.

A. E Adamson testified in substance that he lived at West Plains, Missouri, and had been a post office inspector for several years; he was inspector during 1938 and 1939 and made some investigation relative to the use of the mails; he saw appellant in 1939 at the post office at Jordan. Witness here introduced the following statement by appellant and said there was no promise of reward or threats used:

"I am 24 years of age and married, having two children. I reside near Jordan, Arkansas, where I receive my mail. I am engaged in farming.

"On or about June 11, 1938, I accompanied Albert Pickens to Batesville, Arkansas, leaving the vicinity of Jordan about 1:00 a. m., with a load of six head of cattle in Pickens' truck. Pickens informed me the cattle had been stolen. We took the cattle to Batesville, where Pickens shipped them by rail to Stewart-Carson White & Co., National Stock Yards, Illinois, in the name of Fred Snyder. Snyder is a patron of a star route on which Pickens was employed as carrier at that time. Snyder received his mail through the post office at Norfork, Arkansas. After we left Batesville, I asked Pickens why he had shipped the cattle in Snyder's name and he stated that when the check came to Norfork he would get it from the mails.

"On or about June 15, 1938, I accompanied Pickens to Gainsville, Missouri, for the purpose of cashing the check which had been sent to Snyder in payment for the cattle. We left Jordan about 7:30 or 8:00 o'clock a. m. Pickens showed me the check on the evening of June 14th, 1938. I did not see it again until the next day on the road to Gainsville. Pickens gave me the check to get it cashed. I cashed the check at the bank of Gainsville, Gainsville, Missouri. I indorsed the check in the name of Fred Snyder. The check was dated June 13, 1938, and payable to Fred Snyder in the amount of $ 129.79. I received the amount of $ 30 from the proceeds of the check. After I had cashed the check, I gave all the money to Pickens and he gave me $ 30. Nick Rand was also to receive a split from the money as he had put up the cattle Pickens had hauled off. The cattle had been running on free range.

"On or about August 6, 1938, on Saturday, I accompanied Albert Pickens to West Plains, Missouri, leaving from the vicinity of Jordan about 3:00 a. m., with three head of cattle in Pickens' truck. Owen Rand went with us as far as Mountain Home, Arkansas. We sold these cattle to a man named Clark at West Plains, receiving the sum of $ 56, of which amount I received the amount of $ 12. I helped Pickens to sell this load of cattle. We sold them in the name of W. M. Hickman and Clark gave me a check payable to W. M. Hickman. I indorsed the name of W. M. Hickman on this check and cashed it at a wholesale house at West Plains, Missouri.

"(signed) Edwin McClellan.

"The use of the mails was not involved in the second sale of stolen cattle by me and Pickens. I was brought into these transactions by Pickens and at his request. I had nothing to do with the theft of the cattle, but I did help dispose of them, knowing them to be stolen. I have not been involved in any other disposals of stolen cattle. I have been shown the check which I cashed payable to Fred Snyder and have placed my name on it as identification.

"(signed) Edwin McClellan.

"Subscribed and sworn to before me at Jordan, Arkansas, this September 23, 1939.

"A. E. Adamson, Post Office Inspector."

Witness Adamson said that appellant read the statement before he signed it, and knew what was in it; appellant indicated to witness that he was going to tell the prosecuting attorney what was in it; he repeated that no promises or threats were made; witness learned that a check had been mailed by a commission company to Fred Snyder and appellant told him all about it; does not know whether appellant had talked to the prosecuting attorney or not; the events in the other case indicated appellant testified for the state and he was not prosecuted.

The prosecuting attorney, R. H. Wood, testified in substance that appellant made a statement to him in the presence of appellant's brother, Ben McClellan, in October, 1939, relative to property taken from Virgil Killian and Herschel Russell; appellant did not come to see witness, as he had promised he would, for two or three weeks, so witness went to see appellant; appellant told him all about the Killian and Russell matter.

There was then introduced the following statement, made by appellant:

"I, Edwin McClellan of Jordan, Arkansas, do make the following statement of my own free will and accord without threat or promise, but solely that my conscience may be clear.

"On Friday, August 5th, 1938, I went from my home to the Jordan post office. On my way down I ran across Owen Rand and Nick Rand about the Otter Creek bridge. They had three cattle tied up in the woods, one a brindle steer, one a Jersey heifer and one a white faced heifer, which they said they had rounded up, and were stolen cattle. After a short time Albert Pickens came down the road from Jordan in his truck and stopped. Owen told Albert that he had some stolen cattle, and Albert said his truck would fool them. Albert said there was one thing worrying him and that was his name on the truck, and he got out and dipped a rag in the battery water and tried to rub the name off, then Owen put the cloth in the sand and rubbed the name off. Albert then drove away and I went on to Jordan. Later I saw Albert at Jordan and he asked me to go to West Plains with him, and said that I could get my shorts. Sometime around midnight or after that night I met Albert Pickens and Owen Rand in Pickens' truck at the Lawson mailbox on the Jordan road, I got in, and we went to Mountain Home. Pickens slowed the truck down about the picnic grounds and Owen jumped off. We went on to West Plains, getting there about sun-up. I got off up in town and Pickens went on down and unloaded the cattle. Then he came back up town and asked me to go with him, and I went down to the stockyards with him. Roy Clark drove up, and Pickens stepped back, and Clark offered $ 56 for the three head of cattle, they being the same cattle that Owen and Nick had tied up the afternoon before. I told Clark that they were stolen cattle, that the other boys had stolen. Clark gave us a check for $ 56 made out to W. M. Hickman drawn on the First National Bank of West Plains. We went down to the West Plains Wholesale Grocery Co., where Pickens bought some feed. When we started to pay for it I pitched the check out on the counter and Pickens said for me to sign his name to it. I signed W. M. Hickman. They tried to hold the check for an account Bill Hicks owed them, but Pickens talked them out of it. Pickens had told me that if they asked where we were from to tell the man that we were from Big Flat, but I misunderstood them and when they asked me, I said Ash Flat. We then went down to the Farmers Exchange and I bought some feed. Then we came back home by the way of Mountain Home. Pickens let me out at the Iuka and Norfork road, handed me $ 12.

"In witness whereof, I have hereunto set my hand this the 19th day of October, 1939.

"(signed) Edwin McClellan.

"Subscribed and sworn to before me this 19th day of October, 1939.

"R. H. Wood."

Witness Wood said that no promises were made to appellant; appellant asked him to recommend a suspended sentence, but witness told him he would not do it; that he had dismissed two cases against appellant and that any punishment in this case would have to be left to the court appellant then asked witness if he would be barred...