Merrit v. State

• Decision Date: 12 November 1904
• Citation: 83 S.W. 330
• Parties: MERRIT v. STATE.
• Court: Arkansas Supreme Court

83 S.W. 330

MERRIT v. STATE.

Supreme Court of Arkansas.

November 12, 1904.

Appeal from Circuit Court, Woodruff County; Hance N. Hutton, Judge.

Nick Merrit appeals from a conviction for larceny. Reversed.

P. R. Andrews and Campbell & Stevenson, for appellant. G. W. Murphy, Atty. Gen., for the State.

McCULLOCH, J.

The appellant was convicted upon an indictment for grand larceny, in stealing one steer, the property of W. N. Marshall. The proof showed that the animal was the joint property of W. N. Marshall and his brother Charles, as partners, and was running in the range across Cache river, from which locality the defendant removed it. W. N. Marshall testified that his brother was away from home, and that he (witness), in the absence of his brother, had exclusive control and management of their cattle. The court instructed the jury, upon the request of the state, that before they could convict the defendant they must find that W. N. Marshall "had possession and control and the exclusive right to manage and control" the steer. The appellant asked the following instruction, which the court gave after inserting, over the objection of appellant, the words "right of" after the word "exclusive," viz.: "(1) You are instructed that the indictment in this case alleges the larceny of a steer, the property of W. N. Marshall. In order to find the defendant guilty, you must find that the steer in question was the absolute property of W. N. Marshall; and that if the evidence shows that the steer alleged to have been stolen was the joint property of W. N. Marshall and his brother, Chas. Marshall, this will be fatal variance to the allegation of ownership, and, unless you further find that W. N. Marshall had the exclusive possession and control of the said steer at the time it was taken up by the defendant, you must acquit the defendant." The appellant also asked the following instruction, which the court refused, viz.: "(2) If you find from the testimony that the property alleged to have been stolen was the joint property of W. N. Marshall and Chas. Marshall, you are instructed that the mere temporary absence from home of Chas. Marshall is not sufficient to vest the entire control and custody of cattle running on the range in W. N. Marshall."

It is settled by the decisions of this court, as well as by all other authorities, that, in indictments for larceny, allegations of ownership are material, and must be proven as alleged, though an allegation of general ownership will be sustained by proof of special ownership. Blankenship v. State, 55 Ark. 244, 18 S. W. 54; McCowan v. State, 58 Ark. 17, 22 S. W. 955. Mr. Bishop states the...