Shoop v. State

• Decision Date: 17 December 1945
• Docket Number: 4398
• Citation: 190 S.W.2d 988,209 Ark. 498
• Parties: Shoop v. State
• Court: Arkansas Supreme Court

190 S.W.2d 988

209 Ark. 498

Shoop v. State

No. 4398

Supreme Court of Arkansas

December 17, 1945

Appeal from Crawford Circuit Court; J. O. Kincannon, Judge.

Affirmed.

Howell & Howell, for appellant.

Guy E. Williams, Attorney General and Oscar E Ellis, Assistant Attorney General, for appellee.

OPINION

Millwee J.

Appellant was charged in the Circuit Court with the crime of receiving stolen property in two informations filed by the prosecuting attorney on May 31, 1945. In the first information it was charged that appellant, on March 15, 1945 received four cases of spinach of the value of $ 10, the property of Joe Salsman, doing business as the Arkansas Canning Company, knowing said property to be stolen. The second information accused appellant of receiving eight cases of spinach on May 27, 1945, in the same manner. The cases were consolidated for trial. The court instructed the jury that a misdemeanor, only, was involved in the first information, since the testimony showed the value of the four cases of spinach involved in that charge to be less than $ 10. The jury acquitted appellant on the felony charge, but found him guilty of a misdemeanor on the charge contained in the first information, leaving the punishment to the court. This appeal is prosecuted from the judgment of the trial court fixing appellant's punishment at six months imprisonment in the county jail.

Jim Dubberly was the warehouse foreman of the Arkansas Canning Company in Van Buren, Arkansas. His duties were to supervise the storage, labeling and shipment of canned vegetables. He was authorized by his employer at various times to sell damaged or "salvaged" canned goods that might be on hand. Mr. Salsman testified that he would point out the salvaged products to Dubberly who would make the sale and turn in the money on the same day. He also testified that Dubberly was never authorized to sell No. 1 spinach, or any products other than salvaged canned goods. These salvaged products were in bent or rusty cans, or cans which had sustained water damage from floods. The spinach exhibited in evidence was No. 1 spinach which was identified as the property of the canning company by the can and code number.

Dubberly testified that in March, 1945, he took four cases of No. 1 spinach from the warehouse, without authority, and delivered it to appellant who paid for the spinach in money and whiskey. When he delivered the spinach he asked appellant, "to keep quiet and not let anybody know 'cause it might get me in trouble." Dubberly made two or three sales of canned goods to appellant before the sale in March. He had authority to make these sales and, for that reason, he did not warn appellant to keep quiet about them. At no time did he have permission or authority to sell No. 1 spinach and he entered his plea of guilty to grand larceny for taking 14 cases without authority.

Vol Russell, chief of police of Van Buren, testified that he discovered several cases of spinach in the garage of Underwood's Taxi Stand covered with seat covers. After questioning some of the employees of the taxi stand, he went to appellant's apartment across the street and questioned him. Appellant told the officer the spinach in the garage was his, and that he got it from a truck driver whose name he did not know. After questioning Dubberly, the officer took appellant into custody and procured a search warrant for his apartment, where two cases of No. 1 spinach and part of a third case were found. Dubberly was then arrested and confessed to taking the spinach without authority.

Appellant testified that he bought canned goods from Dubberly three or four times. He bought three cases of spinach in March, 1945, which were delivered to his room by Dubberly. He denied that Dubberly told him to keep quiet about the sale, or that he had any knowledge that Dubberly had no right to sell the spinach. Appellant first admitted, and then denied, that he told the chief of police that he got the spinach found in the garage from some truck driver. He and Dubberly were good friends and Dubberly owed appellant for taking him to Fort Smith to get whiskey.

The first assignment of error urged by appellant for reversal of the judgment is that the trial court erred in overruling his challenges for cause to the prospective jurors, Charlie Vyles and Clyde Watts. If it be conceded that the court erroneously refused to excuse the two prospective jurors for cause, still there is no showing in the record that appellant exhausted his peremptory challenges. Where a defendant fails to exhaust his peremptory challenges, he waives any error the court may have committed in not excusing a juror for cause. Benton v. State, 30 Ark. 328; Wright v. State, 35 Ark. 639; Caldwell v. State, 69 Ark. 322, 63 S.W. 59; Holt v. State, 91 Ark. 576, 121 S.W. 1072; Smith v. State, 205 Ark. 833, 170 S.W.2d 1001.

Appellant's next assignment of error challenges the sufficiency of the evidence to support the verdict. In instruction No. 4 the court told the jury that the burden was on the State to prove beyond a reasonable doubt: first, that the property was stolen; second, that it belonged to the party alleged in the information; third, that the defendant received it in his possession; fourth, that when he received it he did so with the knowledge that it was stolen; fifth, that he had the intention at the time he received it to deprive the true owner of his property and continued the larceny of it. This instruction covered every element of the offense charged. Bryan v. State, 179 Ark. 216, 15 S.W.2d 312.

It is admitted by appellant that he received the spinach from Dubberly and had it in his possession. It is also admitted that the spinach belonged to the canning company, but it is earnestly insisted that the testimony is insufficient to show that the property was stolen, or that it was received by appellant with knowledge that it was stolen. It is argued that, since Dubberly was authorized by his employer to sell canned products which appellant had bought on other occasions, he had a right to assume that Dubberly had authority to sell the spinach involved in the charge upon which he was convicted. This argument fails to take into account the testimony on behalf of the State to the effect that Dubberly was without authority to sell No. 1 spinach of the type involved in this case. In view of this evidence, the association of the parties, and the further evidence that Dubberly requested appellant to keep quiet about the delivery of the three or four cases in March, 1945, we cannot say there was a lack of substantial evidence to support...