Puckett v. State

• Decision Date: 05 July 1937
• Docket Number: No. 4039.,4039.
• Citation: 108 S.W.2d 468
• Parties: PUCKETT v. STATE.
• Court: Arkansas Supreme Court

108 S.W.2d 468

PUCKETT v. STATE.

No. 4039.

Supreme Court of Arkansas.

July 5, 1937.

Rehearing Denied September 27, 1937.

Appeal from Circuit Court, Pulaski County, First Division; Abner McGehee, Judge.

James D. Puckett was convicted of larceny, and he appeals.

Judgment affirmed.

Joe N. Wills, of North Little Rock, for appellant.

Jack Holt, Atty. Gen., and Jno. P. Streepey, Asst. Atty. Gen., for the State.

HUMPHREYS, Justice.

Appellant was indicted, tried, and convicted in the circuit court of Pulaski county, First division, for the crime of grand larceny, and as a punishment therefor was adjudged to serve a term of two years in the state penitentiary, from which judgment he has duly prosecuted an appeal to this court.

The indictment contained two charges, the first count therein charging him with burglary, and the second count therein charging him with grand larceny.

Testimony was introduced by the state tending to show that he was guilty of both burglary and grand larceny. The court defined the offense of burglary in instruction No. 6 and the offense of grand larceny in instruction No. 7, which were given to the jury by him. Instruction No. 7 is as follows:

"If you find that after he entered the house he did steal, take, and carry away personal property, as alleged in the indictment, of the greater value than twenty-five dollars, and you believe that beyond a reasonable doubt, then it would be your duty to convict him of grand larceny also."

The jury acquitted appellant on the charge of burglary and convicted him on the charge of grand larceny.

Appellant contends that under the instruction given by the court defining grand larceny that an acquittal on the charge of burglary necessarily worked an acquittal of the charge of grand larceny. We do not construe the instruction defining grand larceny as meaning that before appellant could be convicted of grand larceny the jury must find that he was guilty of burglary. The jury did not so interpret the instruction, else when it acquitted appellant on the charge of burglary it would also have acquitted him on the charge of grand larceny. The law is that where one is charged with both burglary and grand larceny, the accused may be convicted of grand larceny and acquitted of burglary. Certainly the trial court did not intend by defining grand larceny as it did to tell the jury that its right to convict appellant on the charge of grand larceny depended on whether it convicted him of burglary.

The next assignment of error is that there is no substantial evidence in the record tending to show that appellant was present, aiding, abetting, or ready and consenting to aid or abet in the crime of grand larceny as charged in the indictment. The indictment charged that A. C. Haley and appellant, in the county of Pulaski and the state of Arkansas, on the 22d day of November, 1936, did unlawfully and feloniously steal, take, and carry away certain property of Paul Seago of the value of $39.60, with the unlawful and felonious intent to deprive him of said property. Appellant argues that since he was indicted as a principal there must be substantial evidence showing that he was present and took part in the larceny. This is true, but his presence and participation in the larceny may be shown by circumstances. It was not necessary in order to convict him to show his presence and participation in the larceny by an eyewitness. A. C. Haley, who was jointly indicted with appellant, and who was convicted of stealing the property described in the indictment from Paul Seago, testified that a short time before entering the Seago home and stealing his property, he had attempted to enter the home of Mr. Holt, and hearing some one in the house he left, going to the Seago home; that appellant was not with him on either occasion and that he did not see or meet appellant until after he had stolen the property out of the Seago home; that he wrapped the stolen goods up in several bundles and was carrying them himself when he first met appellant about halfway between the overhead bridge on the Fort Smith branch and the main line of the Missouri Pacific; that appellant told him he was going to California and was going to the depot for that purpose; that he told appellant he would show him the way to the depot if he would carry some of his bundles; that he did so and after they had proceeded about a quarter of a mile they were arrested by a police officer.

Police officer Thompson testified that after visiting the Holt and Seago homes he, in company with an officer by the name of Hendricks, started to hunt for the offenders and saw two men carrying bundles crossing the paved road at Railroad avenue and 22d street but did not arrest them because they did not correspond with the description of the men who had been seen attempting to enter the Holt home; that the men they had seen at the intersection of these streets were shortly afterwards arrested by a special officer in the Missouri Pacific yards who took them to the police station; that they were the same men he and Hendricks had seen at the intersection of Railroad avenue and 22d street carrying bundles; that they sent for Paul Seago and his wife who identified the goods taken from the men as those stolen from their house.

Stacy Edwards,...