Monk v. State

• Court: Arkansas Supreme Court
• Writing for the Court: SMITH, J.
• Citation: Monk v. State, 197 S.W. 580, 130 Ark. 358 (Ark. 1917)
• Decision Date: 24 September 1917
• Docket Number: 125
• Parties: MONK v. STATE

197 S.W. 580

130 Ark. 358

MONK v. STATE

No. 125

Supreme Court of Arkansas

September 24, 1917

Appeal from Jefferson Circuit Court; W. B. Sorrells, Judge affirmed.

Judgment affirmed.

S. J Hunt and Rowell & Alexander, for appellant.

1. The evidence does not support the verdict. The court should have given the instruction asked as to the presumption of innocence. 1 Greenleaf on Ev., par. 34.

2. It was error also to refuse to give No. 4 as to reasonable doubt. May's Cr. Law, par. 277; 25 Cyc. 18; 179 S.W. 568.

3. To constitute larceny there must be a felonious intent, and the court erred in refusing instruction No. 6 asked. 60 Ark. 5.

4. Robinson was an accomplice and his testimony is not corroborated. 109 Ark. 498; 108 Id. 447.

If appellant believed the hogs belonged to Ed Robinson, he was not guilty of larceny. 96 Ark. 149; 70 Id. 204; 72 Id. 640.

John D Arbuckle, Attorney General, and T. W. Campbell, Assistant, for appellee.

1. On the whole the evidence is ample to sustain the conviction. Ed Robinson's testimony was corroborated. 64 Ark. 247.

2. There is no error in the instructions. The trial court is not required to duplicate instructions as to reasonable doubt, innocence, etc. 72 Ark. 384; 74 Id. 33.

3. Instruction No. 4 was properly refused; it was not the law. Larceny consists of two elements--the taking and carrying away. If appellant was present, aiding and abetting, he was guilty. 32 Ark. 727, 733.

4. There is no error in the other instructions given or refused.

5. Oscar Parnels' testimony was competent. 72 Ark. 586; 75 Id. 427.

OPINION

SMITH, J.

Appellant was convicted of grand larceny, alleged to have been committed by stealing two hogs, the property of W. H. Robinson. Under the allegations of the indictment, he stood charged as principal offender, and by this appeal he questions both the sufficiency of the evidence and the correctness of the instructions under which the case was submitted to the jury, and also the action of the court in admitting, over his objection, certain evidence.

The evidence on the part of the State may be summarized as follows: One Ed Robinson testified that, on the morning when the hogs in question were killed, appellant, at witness' request, killed one of his hogs and dressed it. Thereafter, appellant and his son, a seventeen-year-old boy named Garland, hunted in the woods for other hogs to kill as the property of witness. They failed to find the hogs, and appellant left for Jeff Springs to sell some beef there. Garland Monk, the boy, continued the search, and found and killed the hogs in question. After killing them, the mark was altered, and the hogs were dragged into the woods. Witness and Garland Monk then went to appellant's home to get appellant's wagon and team to haul the hogs to an old out-house to dress them. Appellant was at home, and knew what they were doing, and, although he was not present when witness and Garland commenced cleaning the hogs, appellant arrived on the scene before that operation was completed and assisted in its performance. These hogs did not belong to witness, and appellant knew that fact. The hog which did belong to witness was carried to appellant's house and cleaned there by appellant himself. All the hogs were loaded into appellant's wagon after they were dressed for market, and that night appellant left home with these hogs between 12 and 1 o'clock, and carried them to Pine Bluff, where he sold them to a butcher for $ 35. W. H. Robinson, the owner of the hogs, missed them, and made search for them, and found a puddle of blood where the hogs had been killed. He found tracks which he thought were made by three different people. The owner of the hogs tracked the wagon through a snow which had recently fallen to appellant's house, and was told by appellant, when inquiry was made in regard to the hogs, that no hogs had been hauled in his wagon for two years. W. H. Robinson went to Pine Bluff, and found the butcher who had purchased the hogs, one of which had not been sold and was still on hand, and recognized his mark on the hog notwithstanding the hog's ear had been mutilated to some extent.

Appellant admitted having killed one of Ed Robinson's hogs, and his search that morning for other hogs, and admits hauling the hogs alleged to have been stolen to Pine Bluff and selling them there. But he says he did this for Robinson, and did not suspect that he was being duped into disposing of stolen property. He contends, also, that the proof does not show that he was present when the hogs were killed, and that, therefore, if guilty at all, it could only be as an accessory after the fact, and, as such, he could not be convicted under an indictment charging him with the crime of larceny as a principal offender. Appellant explained his midnight departure with the hogs by saying that it was necessary to do this to arrive at Pine Bluff early in the morning, which was the most favorable time for selling fresh meat. He denied being present when the hogs were killed, and offered explanations of the various incriminating circumstances against him, his explanations being sufficient to relieve his acts of their criminality had they been accepted by the jury.

There was other evidence which tended to contradict, and also to corroborate, the testimony recited.

In the case of Friend v. State, 109 Ark. 498, 160 S.W. 384, it was held that one not present when an offense is committed, can not properly be indicted as a principal, but, if indicted at all, must be indicted as an accessory. And in the case of Hughey v. State, 109 Ark. 389, 159 S.W. 1129, it was held that, when a defendant was charged with the larceny of a cow, but was not present aiding, abetting and assisting in stealing the animal, but merely encouraged another to steal cattle generally, the defendant was, at most, an accessory before the fact of the larceny, and could not be convicted of larceny as a principal. These cases cite a number of other opinions of this court to the same effect. Appellant invokes the doctrine of these cases to sustain his contention that he can not be convicted under the indictment in this case, for the reason that the proof shows that he was not present when the hogs were killed, and that, consequently, no guilty knowledge beforehand, or subsequent participation thereafter, could make him guilty as a principal offender. But, as appears from the testimony recited above, there was evidence to support the finding that appellant was a party to the conspiracy to steal the hogs, and, although there was such asportation of the hogs before appellant appeared on the scene as would have been sufficient to sustain a conviction of larceny against both Ed Robinson and Garland Monk, still the asportation was not fully completed until appellant did appear and participate in the consummation of the crime. If there was a corrupt understanding between the parties at all, it went, not merely to killing the hogs, but extended to their final sale. Dressing and cleaning the hogs, and carrying them to Pine Bluff, was a continuation of the asportation, and appellant personally participated in the performance of these essentials.

In the case of Ridgell v. State, 110 Ark. 606, 162 S.W. 773, the following quotation from 2 Wharton's Criminal Law, section 1165, was approved: "In larceny a party can not be convicted as a principal unless he were actually or constructively present at the taking or carrying away of the goods. His previous consent to or procurement of the caption and asportation will not, at common...