Meadors v. State

• Court: Arkansas Supreme Court
• Writing for the Court: WOOD, J.
• Citation: Meadors v. State, 285 S.W. 380, 171 Ark. 705 (Ark. 1926)
• Decision Date: 12 July 1926
• Docket Number: 120
• Parties: MEADORS v. STATE

285 S.W. 380

171 Ark. 705

MEADORS v. STATE

No. 120

Supreme Court of Arkansas

July 12, 1926

Appeal from Sebastian Circuit Court, Sebastian District; John E Tatum, Judge; affirmed.

Judgment affirmed.

Roy Gean, for appellant.

H. W Applegate, Attorney General, and John L. Carter, Assistant for appellee.

OPINION

WOOD, J.

The appellant was indicted in the Sebastian Circuit Court in two counts for the crimes of burglary and grand larceny. He was tried on both counts, and convicted of the crime of grand larceny and sentenced to one year's imprisonment in the State Penitentiary. From that judgment he appeals. We will dispose of the assignments of error for reversal in the order in which they are presented by counsel for the appellant.

1. The second count of the indictment charged that the money alleged to have been stolen was the property of the Gibson Oil Company, a corporation. Leon Johnson testified that he was employed at the filling station which was operated by the Gibson Oil Company; that the Gibson Oil Company is a corporation; that the appellant took the money belonging to the Gibson Oil Company out of the cash drawer, where it was kept at the Speedway Filling Station in Fort Smith. Counsel for appellant contends that the above testimony was not competent to prove that the Gibson Oil Company is a corporation. In the case of Brown v. State, 108 Ark. 336, 399, 157 S.W. 934, we held, quoting from 3 Bishop's New Criminal Procedure, § 72, that "if a corporation is alleged as owner, only its de facto existence need be shown in evidence." See 7 R. C. L., p. 103, paragraph 79.

We have held in several cases that the existence of a corporation may be proved by general reputation. See Fleener v. State, 58 Ark. 98, 23 S.W. 1; Pearrow v. State, 146 Ark. 182, 225 S.W. 311; Kelley v. Stern Pub. & Novelty Co., 147 Ark. 383, 227 S.W. 609. These cases do not hold that the existence of a corporation may not be proved by oral testimony of a witness who has knowledge of the fact. Here the de facto existence of the corporation was proved by the testimony of Leon Johnson, to the effect that he knew that the Gibson Oil Company was a corporation, and that it operated the filling station and owned the money which appellant took. In 3 Ency. of Evidence, p. 604, the rule is stated as follows: "In criminal prosecutions for offenses charged to have been committed upon the property of a corporation, the fact of corporate existence may be proved by reputation, or by the oral testimony of a witness who has knowledge of the fact." See also Reed v. State, 15 Ohio 217; Norton v. State, 74 Ind. 337.

2. Counsel urge that the testimony was not sufficient to sustain the verdict. Leon Johnson, who was operating the filling station, testified in substance that, after opening the filling station about 6:40 or 6:45 A. M., he put the change in the money drawer, and had his back to the door when he opened same, looked around, and there was a fellow standing there. He came in and drew his gun, and witness realized what was up. He faced witness, and told him to put his hands up, and kept his mouth closed tight, and nodded to witness two or three times. He then said to witness, "Stand still," when witness discovered his gold tooth, his light eyelashes and blue eyes. These attracted witness' attention. The gold tooth was in his upper jaw on the right side of his mouth. He had a cap on, and it looked as if he had taken the stopper to an ink bottle and dotted it around under his eyes. Witness was in a position to see the person closely. A big bright light was hanging in the center of the station. The witness was then asked, "Is this the man here?" (indicating the defendant), and answered, "Yes sir." He was asked, "You are positive that he is the man?" and answered "I would be safe in saying positive--could not be mistaken."

Several witnesses for the appellant testified to the effect that the appellant was seen at certain places on Friday morning, which would have made it physically impossible for him to have been present and to have robbed the filling station operated by Leon Johnson in Fort Smith at 7 or 7:02 o'clock A. M., that morning, as testified to by Leon Johnson. The credibility of all these witnesses and the weight of their testimony was for the jury. Certainly the testimony of the witness Johnson for the State was sufficient to justify the jury, if they credited his testimony, which they did, in returning a verdict of guilty against the appellant. This testimony proving the identification of the appellant was something more than mere suspicion or conjecture. It was the positive statement that Johnson recognized the appellant, and he stated the facts establishing the identification.

3. The court gave the following instruction: "The court further instructs the jury, if you believe from the evidence, beyond a reasonable doubt, that the defendant Bob Meadors, in the district, county and State aforesaid, $ 13.36 gold, silver or paper money, the property of the Gibson Oil Company, a corporation, unlawfully and feloniously did steal, take and carry away, then you should convict the defendant of grand larceny; otherwise you should acquit him on this charge." The appellant interposed a general objection to...