Palmer v. State

• Decision Date: 13 October 1913
• Citation: 160 S.W. 204,109 Ark. 411
• Parties: PALMER v. STATE
• Court: Arkansas Supreme Court

160 S.W. 204

109 Ark. 411

PALMER v. STATE

Supreme Court of Arkansas

October 13, 1913

Appeal from Garland Circuit Court; Calvin T. Cotham, Judge affirmed.

Judgment affirmed.

Appellant pro se.

1. There is no proof of age.

2. Cites 51 Ark. 119, as to the court's charge to the jury.

Wm. L Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.

1. Age may be proven by circumstantial evidence.

2. There is no error in the court's charge. Kirby's Digest, §§ 1837-8; 53 N.W. 571; 100 Ark. 201.

OPINION

MCCULLOCH, C. J.

The defendant was convicted under an indictment based upon the following statute:

"If any clerk, apprentice, servant, employee, agent or attorney of any private person, or of any copartnership, except clerks, apprentices, servants and employees within the age of sixteen years, or any officer, clerk, servant, employee, agent or attorney of any incorporated company, or any person employed in any such capacity, shall embezzle or convert to his own use, or shall take, make way with, or secrete, with intent to embezzle or convert to his own use, without the consent of his master or employer, any money, goods or rights in action, or any valuable security or effects whatsoever belonging to any other person, which shall have come to his possession, or under his care or custody, by virtue of such employment, office, agency or attorneyship, he shall be deemed guilty of larceny, and on conviction shall be punished as in case of larceny." Section 1837, Kirby's Digest.

The charge contained in the indictment is, in substance, that defendant, being the agent and bailee of Sam Rye, and having entrusted to his possession a certain promissory note, the property of said Rye, which had been executed to him by one Miller Swancy, of a certain date, for the sum of $ 92, and of that value, did feloniously and fraudulently embezzle and convert said note to his own use, without the consent of said owner.

The indictment also contained another count charging defendant with the crime of grand larceny, alleged to have been committed by stealing $ 30 in money, the property of Sam Rye.

Upon a trial of the case the court gave a peremptory instruction in defendant's favor as to the second count, and the jury returned a verdict of guilty under the first count.

The testimony adduced by the State tended to show that defendant pretended to Rye that he was an "ex-attorney," and proposed to him to collect the note in question without charge; that the note was entrusted to him for collection, and that he subsequently converted the same to his own use by hypothecating it to a bank in the city of Hot Springs for a loan of money, or, rather, that he hypothecated it to one Cobb for the purpose of having the latter endorse his note to the bank.

The evidence was sufficient to sustain each of the elements of the crime.

It is especially contended by appellant that there was no affirmative proof that he was over sixteen years of age at the time of the alleged commission of the offense.

It is true that no witness testified directly as to defendant's age, but there are many statements of the witnesses from which the jury might infer that he was a mature man. There is much testimony about his former occupations and his statements concerning the same which would justify the jury in finding that, according to his own admissions, he was very much over sixteen years of age. He claims that he had been an attorney-at-law, and that he was an experienced worker in concrete. Besides this, he testified...