Russell v. State

• Decision Date: 19 December 1910
• Citation: Russell v. State, 133 S.W. 188, 97 Ark. 92 (Ark. 1910)
• Parties: RUSSELL v. STATE
• Court: Arkansas Supreme Court

133 S.W. 188

97 Ark. 92

RUSSELL v. STATE

Supreme Court of Arkansas

December 19, 1910

Appeal from Benton Circuit Court; J. S. Maples, Judge; affirmed.

Judgment affirmed.

Rice & Dickson, for appellant.

Hal L Norwood, Attorney General, and W. H. Rector, for appellee.

OPINION

FRAUENTHAL, J.

The defendant, J. R. Russell, was tried and convicted upon the first count of an indictment charging him with being accessory before the fact to the crime of killing a sheep with the felonious intent to steal the same, and that the offense was committed by him in Benton County. The indictment contained three counts, in all of which the allegations were the same, except as to the ownership of the property alleged to have been stolen. In the first count it was alleged that the property was owned by one whose name to the grand jury was unknown. In the other counts of the indictment the names of the alleged owners of the property were stated. The State made its election to go to trial on the first count of the indictment, and the trial proceeded upon that count. The jury returned the following verdict: "We, the jury, find the defendant guilty as charged in the indictment, and fix his penalty at one year in the State Penitentiary. " The testimony on the part of the State tended to prove that the defendant resided in Benton County a short distance from the line of the State of Missouri. It appears that Bert Baker and C. E. Henson owned a number of sheep which ranged on and near the defendant's land, and that the head and entrails of the sheep which it was claimed was killed had been buried near the defendant's house when these portions of the sheep were exhumed and seen by the alleged owners. Because the ears had been mutilated these alleged owners were unable to state that the sheep was their property. It appears that a few days prior to March 21, 1910, one Walter Alderson and a girl named Ledo Palm went to the home of defendant on a visit. The girl testified that while at defendant's house she heard defendant and Alderson talking about killing a sheep, and that defendant told him to take a gun and go on the hillside and kill one; that she and Alderson then went to the place indicated, and Alderson killed the sheep, and brought same back in a sack, and defendant assisted in dressing it; and that his wife then cooked it, and they ate it, and thereupon defendant assisted them in burying its head and entrails near his house while his wife kept watch. This witness was an accomplice; but we think that her testimony was sufficiently corroborated by other testimony adduced upon the trial. The defendant testified upon the trial, and stated that Alderson obtained the gun with his permission, and with the girl went to the hillside, and returned with the carcass of the sheep which had been shot, and that he told them they ought not to have killed it. He stated to other witnesses after his arrest that he guessed he was guilty because he let them bring the sheep to his house and because he ate it, but he claimed he did not advise Alderson to kill it. Before his arrest he did not give any information of the killing of this sheep, which he admitted he thought was wrongful; and this circumstance, taken into connection with his other admissions and the fact that the head and entrails of the sheep were found buried near defendant's house at the place indicated by this girl, was sufficient to corroborate her testimony. Her testimony could be corroborated by admissions made by defendant and by circumstances which connected him with the crime charged. This testimony of his admissions and the circumstances attending the killing of the sheep and the concealment of its head and entrails was of a corroborative nature, and it was a question for the jury to determine as to what effect it was entitled to. Cooper v. State, 86 Ark. 30, 109 S.W. 1023; Nichols v. State, 92 Ark. 421; 1 Ency. Law & Pleading 583, 122 S.W. 1003.

It is urged by counsel for defendant that the court erred in refusing to permit the introduction of the testimony of a witness for defendant relative to maps and plats showing the location of the line between the State of Arkansas and Missouri. This witness testified that he was a surveyor, and that he had surveyed the line at this place between the State of Arkansas and Missouri, and that the house of defendant was 20 feet across the line in the State of Missouri. The purpose of this testimony was to show that the crime, if any, which was alleged to have been committed at defendant's house, was not committed in Benton County. This witness was further asked whether, he had examined the State official maps and plats showing the line between Benton County and the State of Missouri, and the court refused to permit him to testify as to what such map and plats contained or showed relative to said line and in comparison with his survey. We do not think the court erred in this ruling. It is provided by section 3589 of Kirby's Digest that the State Land Commissioner shall receive from the proper officers of the United States the field notes and maps appertaining to the surveys of the public lands; and it is provided by section 3594 of Kirby's Digest that the county courts are empowered to procure from the State Land Commissioner the field notes and township maps of the lands in their...