Sheptine v. State

• Decision Date: 25 March 1918
• Docket Number: 245
• Citation: 202 S.W. 225,133 Ark. 239
• Parties: SHEPTINE v. STATE
• Court: Arkansas Supreme Court

202 S.W. 225

133 Ark. 239

SHEPTINE v. STATE

No. 245

Supreme Court of Arkansas

March 25, 1918

Appeal from Monroe Circuit Court; Thomas C. Trimble, Judge affirmed.

Judgment affirmed.

Lee & Moore, for appellant.

1. The continuance should have been granted. The refusal was an abuse of discretion by the court. 42 Ark. 273.

2. The opening statements of the prosecuting attorney were highly prejudicial. 88 Ark. 581; 71 Id. 417; 66 Id. 16.

3. The demurrer to the evidence should have been sustained. It does not sustain the verdict.

4. It was error to permit John Davis to remain in the court room. 101 Ark. 156; 180 S.W. 275; 39 Id. 278. It was error to permit evidence as to Mack Powell's hogs. The withdrawal did not cure the error. 39 Ark. 278. See also 67 Ark. 234; 120 Id. 462.

5. The court erred in refusing instruction No. 2. 99 Ark. 333. Also in refusing Nos. 3 and 6, 7, 8 and 11.

John D Arbuckle, Attorney General, and T. W. Campbell, Assistant for appellee.

1. The continuance was properly refused. Kirby's Digest, §§ 2311, 6173.

2. There was no error in the opening statement of the prosecuting attorney. 110 Ark. 318; 125 Id. 275; 84 Id. 119; 87 Id. 17; 131 Ark. 445; 130 Ark. 48.

3. The evidence is ample to sustain the verdict.

4. It was not error to permit Davis to remain in the court room. Kirby's Digest, § 3142; 101 Ark. 155; 90 Id. 135; 77 Id. 603; 93 Id. 140.

5. There was no error in the testimony of Jim Clements. See cases cited, supra.

6. Nor in Stone's testimony.

7. There is no error in the refusal of instructions. Many of them are not the law. The others charged the jury as to matters of fact. The law was correctly given. Const., art. 7, § 23.

OPINION

HART, J.

W. H. Sheptine prosecutes this appeal to reverse a judgment of conviction against him for the crime of grand larceny, charged to have been committed by stealing eleven hogs belonging to John Davis.

It is first insisted by counsel for the defendant that the court erred in overruling his motion for a continuance on account of the absence of witnesses. No showing was made of proper diligence exercised to secure the attendance of the absent witnesses and the court did not abuse its discretion in refusing to grant a continuance on that account. Hamer v. State, 104 Ark. 606, 150 S.W. 142; Jackson v. State, 94 Ark. 169, 126 S.W. 843, and Bevis v. State, 90 Ark. 586, 119 S.W. 1131.

The most serious question in the case and the one which has given us the greatest concern, is whether or not the evidence is legally sufficient to warrant the verdict. The defendant, W. H. Sheptine, lived near Rowe on White river, in Monroe County, Arkansas. He dealt in hogs and shipped them to market. John Davis lived near him in the same county and on the same side of the river. He had something like twenty-five or thirty head of hogs in one bunch that ran on the range near his place and Sheptine knew his hogs. During the summer of 1917 Davis was gone from home three or four weeks driving wells. When he returned home he went to the woods to feed his hogs and eleven head of his large hogs were gone. His mark was a small crop and split in the right and a hole in the left ear. Davis asked him about his missing hogs, and the defendant told him that he had seen five or six head of them up by the Ramsey mill two or three days before. Davis made further inquiries and received word that his hogs might be down the river about twenty-five miles on the opposite side of the river to which they were accustomed to range. He went down there and found them near a pen built on the bank of the river. He called them and they knew him at once. A man by the name of Lockeridge was in charge of the hogs and refused to give them up, stating that he was taking care of them for Sheptine. In a little while Sheptine came along, and after talking to Lockeridge, was called to where the hogs were by Davis and admitted that he knew the hogs and that they belonged to Davis. Lockeridge was present but not directly engaged in the conversation between Davis and Sheptine. He was talking to another man, and after Sheptine admitted that the hogs belonged to Davis, he said: "This leaves me in a devil of a shape; they are the hogs that I have been feeding and Mr. Sheptine denies them." Davis found his hogs about the first of September and they had been gone since about the first of July. There were eleven head of the hogs and their ears had been cut off since Davis had last seen them. Sheptine had a hog boat down there, and this was the only hog boat on the river. He also had a pen built near his home up the river, which could be used in loading hogs into a boat. Davis reminded Sheptine while they were at the place where the hogs were found that he had told him a week or two before that he had seen the hogs up near Ramsey's mill. Davis then said: "According to Lockeridge's statement you could not have seen them up there a week or two before; for he says he has been feeding them a month or six weeks." Some time before the hogs were found, Lockeridge, Sheptine and two other persons were down in the bottoms near where the hogs were found going to cut a bee tree. The two men with Lockeridge and Sheptine said that some hogs got up which had their ears cut off which were called "no-eared" hogs. Sheptine stated that these hogs belonged to him and Lockeridge. One of the witnesses testified that they were about fifty yards away from the hogs, and that the hogs had the same flesh marks and their ears cut off just as were the hogs found by Davis. He stated that they looked like the same hogs. The other witness identified some of the hogs found by Davis as being the hogs claimed by Sheptine.

On the other hand, the defendant stated that he had bought thirty head of hogs from Ed Howard up the river near his home; that these hogs were marked with a crop and an under half crop in each ear; that Howard had marked the hogs himself and that they were very heavily marked and on that account known as "no-eared" hogs; that he carried these hogs down the river and turned them loose in the range near the home of Lockeridge; that he supposed that Lockeridge was looking after these hogs; that he did not know that he was looking after Davis' hogs; that he carried the hogs down there in a boat and made no effort to conceal his acts; that he went in the night time because it was hot weather and the hogs could stand the trip better at night. He was corroborated by Ed Howard and by other persons who helped him to build the pen and to carry the hogs down there.

Inasmuch as in testing the legal sufficiency of the verdict the testimony must be viewed in the light most favorable to the State, we need not abstract the evidence adduced in his behalf at length. We think the evidence was legally sufficient to warrant the verdict. The jury might have inferred from it that somebody had taken the hogs of Davis remarked them, carried them down the river twenty-five miles, and turned them into the range on the opposite side of the river. We also think the jury was warranted in finding that the defendant was the person who did this. He knew well Davis' hogs and identified them at once as soon as he saw them by their flesh marks, although their ear marks had been changed. When the defendant admitted that the hogs belonged to Davis after he had looked at them, Lockeridge remarked that this left him in a devil of a fix. Davis heard this remark. The defendant said nothing, but it may also be inferred that he heard it. The defendant admitted that he carried some hogs down the river which were marked in a similar manner to Davis' hogs. No account is given anywhere in the testimony as to what became of these hogs. When all the facts and circumstances are considered...