Thomas v. State
| Decision Date | 07 April 1913 |
| Citation | 155 S.W. 1165,107 Ark. 469 |
| Parties | THOMAS v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge; reversed.
Judgment reversed and cause remanded.
Jo Johnson, for appellant.
1. The court should have sustained appellant's motion for peremptory charge to acquit. The evidence is clear that there was never as much as $ 10.00 in the meter at one time, and that at the date in question there could not have been more than twenty-five cents. If there was an intent to commit petit larceny only, there was no burglary. 61 Ark. 341, 347.
2. The remarks of the prosecuting attorney in argument to the jury were unfair and prejudicial, and those remarks particularly which declared that the court would have taken the case from the jury if there were no testimony on which they could convict were not true in law. The court's refusal to exclude this language was an endorsement thereof, and an invasion of the province of the jury to pass upon the weight and credibility of the testimony. 74 Ark. 256.
His declaration, "I know he is guilty, and I ask you to convict him," is a declaration of fact and not a mere expression of opinion. 100 Ark. 437, 444; 95 Ark. 233; 61 Ark. 130; 58 Ark. 473.
Wm. L Moose, Attorney General, and John P. Streepey, Assistant, for appellee.
1. Since the record does not disclose what instructions were given to the jury, the presumption is, that they were properly instructed upon all questions material to the issues raised, including the statement that he knew that the defendant was guilty. At most, it was a mere expression of opinion. 96 Ark. 7, 14; Id. 177, 181.
2. There is sufficient evidence to sustain the verdict. The jury were the sole judges of the credibility of the witnesses, and the weight to be given their testimony.
This is an appeal from a judgment of conviction for the crime of burglary, appellant being charged with having, in the night-time, broken and entered a house in the city of Fort Smith occupied by one Johnson as a pool hall. It is further charged that the defendant entered the house with felonious intent to steal the personal property of said Johnson of the value of $ 25.00.
At the trial of the case the State introduced a witness who testified that he saw appellant raise the window of Johnson's pool hall and enter the room; that he followed appellant into the room and heard him knocking on something up toward a portion of the room occupied as a barber shop that he (witness) went up to appellant and asked him what he was doing there, and appellant replied that he was drunk, and that thereupon he and appellant both left the room. It was found, on examination the next day, that a gas meter in the room, arranged on the slot machine plan so that the consumer could pay as he used the gas, had been broken or "tampered with," as stated by the witnesses. Testimony was also adduced to the effect that the money had been removed from the gas meter the day before the alleged burglary. There was also testimony tending to show the customary monthly consumption of gas in the establishment. It appears that there was another gas meter in the room, which was found not to have been disturbed.
Appellant testified in his own behalf, denying that he entered the place at all, and he introduced several other witnesses whose testimony tended to establish the fact that he was at another place about the time the State's witness said he entered the house.
It is insisted, in the first place, that the testimony is not sufficient to sustain the verdict, in that there was not enough to show that appellant entered with intent to steal more than $ 10.00. The argument is, that the gas meter according to customary consumption of gas, never contained as much as $ 10.00 at one time, and that, therefore, he could not have intended to steal more than that amount. The State's testimony tended to show that appellant was interrupted before he fully carried out his design in entering the house. In reply to argument of counsel on this point it is only necessary to refer to decisions of this court holding that circumstances may warrant the inference that the house was entered with intent to commit grand larceny even though it turned out that that amount of property was not stolen, or that the circumstances might warrant the inference that the house was entered with...
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