Stewart v. State

• Decision Date: 02 December 1935
• Docket Number: Crim. 3968
• Citation: 88 S.W.2d 856,191 Ark. 913
• Parties: STEWART v. STATE
• Court: Arkansas Supreme Court

88 S.W.2d 856

191 Ark. 913

STEWART v. STATE

Crim. 3968

Supreme Court of Arkansas

December 2, 1935

Appeal from White Circuit Court; Gordon Armitage, Special Judge affirmed.

Judgment affirmed.

Golden Blount and Thomas J. Carter, for appellant.

Carl E. Bailey, Attorney General, and Guy Williams, Assistant, for appellee.

OPINION

SMITH, J.

Appellant was tried under an indictment containing two counts. The first count charged him with the crime of burglary, the second, with that of grand larceny alleged to have been committed by stealing thirty dollars, the property of O. J. Clark. He was convicted upon the second count and given a sentence of one year in the penitentiary, from which is this appeal.

For a reversal of this judgment, it is insisted (a) that the indictment does not charge the commission of the crime for which appellant was convicted, (b) that, if he is guilty of any offense, the crime was that of accessory before the fact whereas appellant was indicted as a principal; and (c) that the testimony is insufficient to sustain a conviction of any offense.

The second count of the indictment upon which appellant was convicted, charging him with the crime of grand larceny, contains allegations sufficient to charge the crime of robbery also. It alleges that appellant "did violently and forcibly take thirty dollars from the person of him, the said O. J. Clark." This is a sufficient charge of the asportation required to constitute the offense of larceny. In vol. 2, Wharton's Criminal Law, (12th ed.), § 1163, it is said: "The taking of another's goods out of the place where they were put, though the taker be detected before they are actually carried away, is larceny. To taking it is essential that the thing should be moved from the particular portion of space which it occupied before the alleged taking, although the whole of it need not be moved from the whole of such space. To take a thing from a person it is necessary that the taker should at some particular moment have adverse possession of the thing. But this independent, absolute control need endure only for an instant."

In the case of Routt v. State, 61 Ark. 594, 34 S.W. 262, the facts were that the appellant had snatched money from another's hand, without force or putting in fear, but had subsequently used a pistol to prevent the owner from retaking the money. The appellant was indicted and convicted of the crime of robbery and given a sentence of ten years in the penitentiary. In the opinion on the original submission the conviction was reversed because, as was said the testimony did not sustain the indictment. On rehearing, a motion of the Attorney General to modify the judgment was sustained, and, it was ordered that the appellant be sentenced for the crime of grand larceny. In so doing it was said that "the charge of robbery made against the appellant in this case included larceny. The indictment alleges the value of the money taken to be $ 100, and under this indictment the appellant might have been convicted of grand larceny." The case of Haley v. State, 49 Ark. 147, 4 S.W. 746, is to the same effect. The reasoning of the court in announcing this conclusion was that the jury must have found the appellant guilty of larceny to have found him guilty of robbery,...