State v. Rives

• Citation: 193 La. 186,190 So. 374
• Decision Date: 26 June 1939
• Docket Number: 35379.
• Court: Supreme Court of Louisiana
• Parties: STATE v. RIVES et al.

190 So. 374

193 La. 186

STATE v. RIVES et al.

No. 35379.

Supreme Court of Louisiana.

June 26, 1939

Appeal from Third Judicial District Court, Parish of Lincoln; E. L Walker, Judge.

Wince Rives, Wilbur Boyett and Ferry Simpson were charged by indictment which stealing three cows. Ferry Simpson, being a minor under 17 years of age, was released, Wilbur Boyett pleaded guilty, and Wince Rives appeals from a conviction.

Verdict and sentence set aside, and case remanded for new trial.

Charles E. Barham, of Ruston, for appellant.

David M. Ellison, Atty. Gen., James O'Connor, Asst. Atty. Gen and Truett L. Scarborough, Dist. Atty., of Ruston, for the State.

ODOM Justice.

The indictment in this case charges that on January 22, 1939 Wince Rives, Wilbur Boyett, and Ferry Simpson did feloniously take, steal, and carry away three cows, the property of Jim Wright. The defendant Ferry Simpson, being a minor under 17 years of age, was released. Wilbur Boyett pleaded guilty and made a written statement implicating Wince Rives and was used as a witness against him. Rives was tried, convicted, and sentenced to hard labor. He appealed.

The error of which he complains is disclosed by two bills of exception reserved during the progress of the trial. Both relate to the same point. The district attorney called a witness named Phil Balance and asked him whether he saw defendant ‘ Sometime before January 22nd, 1939’ (this being the date on which the cows were alleged to have been stolen). The witness answered that he did and said that Aubrey Cook was present at the time he met and had a conversation with defendant. He was then asked, ‘ Please state to the jury what was said by him [the defendant] at that time.’

Counsel for defendant objected to the introduction of evidence of what was said by defendant on that occasion, on the grounds that the State was attempting to prove the commission of a crime other than the one for which defendant was being prosecuted; that it had already been shown by the witness Aubrey Cook that the conversation inquired about related to cows belonging to Nelson's Dairy and not to cows belonging to Jim Wright, which defendant was accused of stealing; that the testimony elicited was immaterial and not relevant to any issue involved in the present prosecution; that the State was attempting to prejudice the jury against the defendant by showing what defendant said to the witness during a conversation which took place some time prior to the date on which the alleged crime was committed and which was in no wise connected with or related to the crime charged in the indictment.

The objection was overruled, and Bill of Exception No. 1 was reserved. The witness was then permitted to testify before the jury and said in substance that he was at the defendant's house one evening when Aubrey Cook came by; that defendant asked them whether they wanted to make some easy money, and that they asked him how, and ‘ He said to get three cows from Nelson's Dairy and he would come along about 10:00 o'clock that night with his trailer. We told him we would not do it, turned him down.’ The witness was then asked, ‘ Is it your testimony that on that occasion he asked you all if you wanted to make a little easy money; you asked how; he told you by stealing some cows?’ He answered, ‘ Yes, sir.’ He was then asked whether defendant proposed to them that they pen the cows at Nelson's Daily and tie them up and that he, defendant, would come by that night and that the three of them would load the cows on defendant's truck. The witness answered, ‘ Yes, sir.’

This witness did not say, nor does the record otherwise show, when this conversation took place, except that it was ‘ Sometime before January 22nd, 1939’ . But counsel for the State say in their brief that it took place about two months before January 22, 1939, the date on which it is alleged that defendant stole Jim Wright's cows, and counsel for the defendant says in his brief that it took place in the latter part of November, 1938.

The prosecuting attorney then called Aubrey Cook, who was asked the same questions as were asked the witness Phil Balance about the conversation. Counsel for defendant urged the same objection, which was overruled, and Bill of Exception No. 2 was reserved.

Cook's testimony relating to the conversation was the same in substance as that of Balance, except that Cook says that, when defendant made his proposition, they told him to go to Hell.

The trial Judge stated his reasons for overruling defendant's objection to this testimony in a per curiam, which reads as follows:

‘ The testimony was admissible under Articles 445 and 446 of the Code of Criminal Procedure.

‘ The purpose of the testimony was not to prove another crime. It does not show that another crime was committed. But it does show his method and intention. It shows that he had a mind bent on doing mischief.’

The purpose of the testimony clearly was to show that accused had, some 60 days prior to the date on which it is alleged in the indictment he committed the theft for which he was being prosecuted, intended and attempted to steal cows belonging to Nelson's Dairy. He was prosecuted for stealing cows from Jim Wright, who had no connection with Nelson's Dairy, so far as the record shows. In other words, the purpose was to show that accused had, on a prior occasion, intended and planned to steal other cows from another person.

The judge ruled that such testimony was admissible to show accused's ‘ method and intention’ and to show that ‘ he had a mind bent on doing mischief’ .

The testimony was not admissible, under the circumstances disclosed, for either purpose. As to method, the record is barren of any evidence to show or even to indicate what method the defendant used in stealing Jim Wright's cows, if he did steal them, nor are we enlightened on this point by the judge's per curiam.

And as to showing intent, the fact-if it be a fact-that accused intended in November, 1938, to steal cows from Nelson's Dairy does not necessarily evidence an intent on his part to steal cows from another person two months later. An evil or felonious intent is an essential ingredient or element of the crime of larceny, and, in order to convict an accused person of that crime, the burden is upon the State to prove that the accused took and carried away the goods or chattels of another without his consent and that such taking and carrying away were done with felonious intent, fraudulently to appropriate the property. But, as relates to the element of intent in the crime of larceny, inference of such intent and fraudulent purpose must as a general rule arise out of the facts and circumstances surrounding the particular case under investigation.

There are exceptions to the general rule, and whether exception should be recognized in any given case depends ordinarily upon the nature of the defense urged or indicated by the accused.

The testimony objected to in this case was not offered in rebuttal. The witnesses were called by the district attorney for direct examination while the case was with the State in chief. There is nothing in the record to disclose or suggest what defense the accused urged, and the trial judge says nothing in his per curiam which throws light on that question. Taking the record as we find it, we must assume that the purpose of introducing this testimony was to prove the ingredient or element of intent as a primary proposition, by showing that on one isolated former occasion, in no way connected with the case on trial, the accused had intended and planned to steal cattle from another person.

In prosecutions for larceny or embezzlement, where the State proves, or the defendant admits, the taking and appropriation of the property of another without his consent, testimony offered by the defendant that he took and appropriated the property by mistake, by accident, or by misadventure, is always relevant and admissible to rebut the inference that the taking and appropriation were done with fraudulent intent. Similarly, in such cases, where it is proved or admitted that the taking and appropriation were knowingly done and the defense is that the accused had a legal right to take and appropriate the property (as for security or satisfaction of a debt or under the mistaken belief that the owner had consented to the taking and appropriation), testimony tending to show good faith on the part of the defendant is likewise admissible for the same purpose.

In such cases, where such defenses are made, the State may, in order to show guilty knowledge and intent, introduce evidence of prior similar transactions on the part of the accused. A felonious intent may be inferred from the circumstances of the taking and appropriating of property without the owner's consent. But this inference may be rebutted by defendant. He may show mistake or accident, or that the taking and appropriation were, according to his understanding, lawful. And, when that defense is urged, the State may introduce testimony that the defendant was in the habit of doing such acts as those for which he was being prosecuted, and thereby show that the defense urged was a mere subterfuge.

But ordinarily, as an independent proposition in prosecutions of such offenses, the State must stand or fall upon facts and circumstances surrounding the particular case under investigation.

As to the suggestion that the testimony was admissible in order to show that defendant ‘ had a mind bent on doing mischief’, no further comment is necessary than to say that it is an elementary rule of criminal procedure that the State is not permitted to introduce in evidence the character of an accused unless and until the accused puts...