Sanders v. State

• Decision Date: 02 October 1939
• Docket Number: 4132
• Citation: 131 S.W.2d 936,198 Ark. 880
• Parties: SANDERS v. STATE
• Court: Arkansas Supreme Court

131 S.W.2d 936

198 Ark. 880

SANDERS v. STATE

4132

Supreme Court of Arkansas

October 2, 1939

Appeal from Izard Circuit Court; John L. Bledsoe, Judge; affirmed.

Judgment affirmed.

Jack Holt, Attorney General, and Jno. P. Streepey, Asst. Atty General, for appellee.

OPINION

MEHAFFY, J.

The appellant was found guilty in the Izard circuit court of burglary and petit larceny, and his punishment was fixed at two years in the state penitentiary for burglary, and a fine of $ 10 for petit larceny. He filed the following motion for new trial:

"Comes now Woodrow Sanders, the defendant herein, and moves the court to set aside the verdict of the jury and the judgment of the court rendered in this cause, and that he be granted a new trial herein, because:

"1. The verdict is contrary to the law.

"2. The judgment is contrary to the law.

"3. The verdict is contrary to the evidence.

"4. The judgment is contrary to the evidence.

"5. The verdict and judgment is contrary to both the law and evidence.

"Wherefore Woodrow Sanders, the defendant herein, prays that this court set aside the verdict of the jury and the judgment of the court rendered herein, and that he be granted a new trial."

Motion for new trial was overruled, and the case is here on appeal.

The information filed by the prosecuting attorney charged appellant in the first count with burglary by feloniously and burglariously breaking and entering a building belonging to one Ray Perryman, in the town of Calico Rock. The second count charged appellant with the crime of grand larceny.

The case was tried by jury, and the jury returned a verdict finding the appellant guilty of burglary and petit larceny. No objections were made to the court's instructions, and no objection was made to the introduction of evidence, and as will appear from appellant's motion for new trial, the only question is the sufficiency of the evidence to sustain the verdict.

Ray Perryman, the owner of the building, testified that he went to his place of business and found some motor oil, gasoline and a five-gallon measuring can missing. He made an investigation and examined the tracks very closely. The persons who entered the building had prized the door open. The door had been locked. He noticed one track in particular, and he next saw that track when he looked at one made by appellant. It was the same as the one inside the building. He then reported the matter to the officers. The five-gallon measuring can was worth from $ 5 to $ 8. There were 11 or 12 quarts of lubricant taken, which was worth 25 cents a quart; four quarts of another kind that sells for 35 cents a quart.

Homer Harris, a deputy sheriff, testified that he investigated the burglary and larceny and first arrested Kenneth Sanders, brother of appellant. Kenneth Sanders said that he got the oil from appellant. Appellant was then arrested and search was made of his house, and a quart can of 50 weight oil was found in an old stove. Appellant said he bought it in Calico Rock from the Perryman Chevrolet Company. Later he confessed and told witness and others that he and Earl Hicks wanted to go to Brockwell to church, and they broke into the station and stole the oil and gas. The confession was made voluntarily.

J. C. Badgett testified that he helped deputy sheriff Homer Harris investigate the case, and when they first questioned Kenneth Sanders, and he told them that he got the oil from his brother, then they arrested appellant. Appellant told them that he had gotten it in a garage at Calico Rock, and they checked his alibi, and he then confessed and said that he and Earl Hicks had broken into the garage and stolen the gas and oil.

Earl Hicks testified that he and appellant broke into the house and stole the gas and oil. They threw the five-gallon can out on top of the hill. They got eight gallons of gas and eleven quarts of oil.

The appellant did not testify.

The court fully instructed the jury, and as we have already said, no objections were made to the instructions.

The jury found the appellant guilty of burglary and of petit larceny. Of course, in order to convict for burglary, the evidence would have to show that he entered with the intent to commit a felony; in this case, grand larceny.

Ray Perryman testified that the five-gallon measuring can was worth from $ 5 to $ 8. The evidence also shows that this can, which was stolen, was thrown out on top of the hill, and that in addition to the can appellant got eight gallons of gas and eleven quarts of oil. The evidence shows that there were 12 quarts of oil, worth 25 cents a quart, and four quarts of another kind worth 35 cents a quart. In addition to the oil, which was worth probably four or five dollars, eight gallons of gasoline were taken. Altogether, this would amount to something more than $ 10; the property actually stolen.

This court said in the case of Monk v. State, 105 Ark. 12, 150 S.W. 133: "The evidence is sufficient we think, to sustain the finding of the jury. The proof adduced by the state tended to establish the value of the watch and fob in excess of the sum of $ 10, but the jury gave defendant...