Thomas v. State

• Decision Date: 02 July 1904
• Citation: 82 S.W. 202,72 Ark. 582
• Parties: THOMAS v. STATE. BURREL v. STATE
• Court: Arkansas Supreme Court

82 S.W. 202

72 Ark. 582

THOMAS v. STATE.

BURREL v. STATE

Supreme Court of Arkansas

July 2, 1904

Appeals from Lafayette Circuit Court, CHARLES W. SMITH Judge.

Judgment reversed and cause remanded.

D. L King, for appellants.

G. W. Murphy, Attorney General, for appellee.

OPINION

RIDDICK, J.

Wyatt Thomas and Robert Burrel were jointly indicted by the grand jury of Lafayette county for the crime of burglary. The indictment alleged, in substance, that in January, 1902, defendants had in said county broke and entered in the night-time a certain house used and occupied by the Kress City Lumber Company as a feed house, with intent to commit grand larceny therein. The defendants were tried separately. The evidence tended to show that about the time charged the house in which the company had stored feed for the oxen and mules it owned was broken and entered by someone at night, and a number of sacks containing corn chops were taken and carried away. The tracks of the wheels of the wagon in which the chops were probably carried away were followed, and led near the houses of these defendants, and the trial resulted in their conviction.

The case was submitted on the brief of the attorney general for the state, and, after considering the matter, we felt some doubt about the justice of the conviction, for the reason that much of the evidence was hearsay and incompetent. For instance, one of the main witnesses to the fact that a burglary was committed was J. M. Wilson, an employee of the Kress City Lumber Company. He testified that the company kept its feed in a house in the woods about four or five miles from that mill, to which place the men who worked in the woods returned at night; that on the morning after the burglary the men left the mill, and, on arriving at the feed house, they found that it had been broken open, and that "the man who did the feeding was present, and he stated it looked like a whole lot of chops had been taken out." Now, it was plain that this was all hearsay on the part of Wilson for he is telling, not what he himself knew about the house being broken and the feed taken, but what the man said about it. The man who did the feeding, and who made these statements to Wilson, should have been put on the stand, so that the fact of the chops having been taken from the house could have been proved by a witness who had direct knowledge of that fact.

Again in order to connect defendants with the crime, the state put Reuben Thomas, the father of defendant, Wyatt Thomas, on the stand, and undertook to show by him that these two defendants had, on the afternoon before the burglary...