Reed v. State

• Decision Date: 27 June 1891
• Citation: 16 S.W. 819,54 Ark. 621
• Parties: REED v. STATE
• Court: Arkansas Supreme Court

16 S.W. 819

54 Ark. 621

REED v. STATE

Supreme Court of Arkansas

June 27, 1891

APPEAL from Sebastian Circuit Court, Greenwood District, EDGAR E BRYANT, Judge.

Judgment affirmed.

Evans & Hiner for appellant.

1. It was error to admit testimony of others larcenies. 1 Gr. Ev secs. 50, 52; 39 Ark. 280; 37 id., 265; 22 Cal. 477; 11 S.W 832; ib., 927; 42 N.W. 1134; 6 So. 237; 35 N.W. 405; 41 id., 136.

2. The instructions refused by the court were copied from Boykin v. State, 34 Ark. and Gr. Ev., and were not covered by any part of the charge.

W. E. Atkinson, Attorney-General, and Chas. T. Coleman for appellee.

1. Evidence of defendant's possession of stolen goods, other than those mentioned in the indictment, was admissible, not to show that defendant would be likely to commit the crime alleged, but to rebut the theory of the defense. 48 Ia. 678; 26 Tex. 209; 30 Miss. 653. It had a tendency to connect the defendant with the larceny, and thus identify him as the one who committed the larceny.

OPINION

HUGHES, J.

The appellant was convicted of larceny upon an indictment charging him with the stealing of a saddle, a blanket, a bridle and a slicker from George Harper. He filed a motion for a new trial which was overruled, to which he excepted, and appealed to this court.

On Sunday night, in the latter part of September, 1889, George Harper rode a mule to church. The saddle on which he rode had what is called in the evidence a "slicker" coat tied to it. He tied the reins of the bridle upon the mule to a tree. After services at the church had closed he went out and found that the mule was gone, also the saddle, bridle and "slicker." He returned to his home, which was about three and a half miles from the church. The mule came up in a few minutes after he reached home, without any of the articles mentioned.

George Harper, a witness, testified that, after he had lost his saddle on Sunday night in September, 1889, at the church, he did not see it again until about the last of January, or the first of February, 1890, when he found it at the house of Mrs. Reed, the mother of the defendant, with whom he lived; that he (Harper) claimed the saddle and took it; that the defendant was not present at the time; that he never saw the saddle in the defendant's possession; that it had different stirrups and girth on it when he got it back; and that Duncan got the stirrups and girth. John Duncan, a witness testified: "The stirrups and girth had been stolen from me at Bowman Hall Church about Christmas before the defendant went to the territory." James George, a witness, testified: "I lost a pair of saddle pockets from my saddle at Bowman Hall Church, at Mansfield, on Christmas eve night (December 24, 1889); defendant left in a day or two on his trip to the nation. He was gone a week or two. I found the saddle pockets in the defendant's possession after he came back. This was the third Monday in January, 1890. He rode the saddle, and the saddle pockets were attached to it. I knew the pockets and recovered them from defendant by his consent." Mrs. Fry, a witness, testified that she saw the saddle at the house of appellant's mother, before the appellant made the trip to the Indian Territory. To the testimony about the saddle-pockets, the stirrups and girth having been lost and found in the possession of the defendant, he objected before the same was given to the jury; his objection was overruled, and he excepted.

The defendant introduced evidence tending to show that he could not have been at the church at the time George Harper lost his saddle on Sunday night in September, 1889; that he was at the time at the house of his brother. He also introduced testimony to show that the saddle was not seen by any of his family in his possession until after his return from a trip to the Indian Territory in January or February, 1890. It was also in proof that, after the saddle, saddle-pockets and stirrups were recovered from the defendant, he left the State, saying he was under suspicion and did not want to be arrested. But he returned in June following and surrendered to a constable. The account which the defendant gave of his possession of the property he was charged with having stolen was: that while in the Indian Territory, on the trip alluded to, he bought a horse and the saddle, said to have been stolen, from a man named Moore, and that the saddle had attached to it the saddle-pockets, a pistol and an overcoat; that he thus obtained the possession of the property for the stealing of which he was indicted. This was the substance of all the testimony in the case.

The court gave to the jury, amongst others, the following instruction: "3. The defendant is presumed innocent, and this presumption is evidence in his favor and protects him from a conviction until his guilt is established by the evidence to the satisfaction of the jury beyond a reasonable doubt."

The appellant asked the court, among other things, to give the following: "1. The presumption that the possessor of recently stolen property is the thief is not a presumption of law, and a weak one of fact; it is not at all conclusive, and of itself is not sufficient for conviction. 2. In cases pending on circumstantial evidence, like the one now on trial, it is incumbent on the State to submit proof not only consistent with defendant's guilt, but inconsistent with any other rational conclusion." The court refused to give these.

There was no error in the refusal of the court to give the rejected prayer number one. It is the province of a jury to determine what weight they will give to evidence. If the court had given this instruction, it would have invaded the province of the jury to weigh the evidence.

While rejected prayer number two is not happily framed, it embodies, as we conceive, a correct proposition of law. It would not have been error to give it. Was it error to refuse it in this case? We think not, for the reason that instruction number three copied above, given by the court, sufficiently declares the law upon the point involved, and it was not error...