Thomas v. State

• Decision Date: 20 January 1908
• Citation: 107 S.W. 390,85 Ark. 138
• Parties: THOMAS v. STATE
• Court: Arkansas Supreme Court

107 S.W. 390

85 Ark. 138

THOMAS v. STATE

Supreme Court of Arkansas

January 20, 1908

Appeal from Phillips Circuit Court; Hance N. Hutton, Judge reversed.

STATEMENT BY THE COURT.

The indictment in this cause charges appellant with having committed the offense of receiving stolen property, with the knowledge that it was stolen.

Testimony was adduced at the trial tending to show that one night about the last of April or the first of May, 1907, at Inman's saloon in the city of Helena, Phillips County, Arkansas, a watch of the value of twenty-five dollars was stolen from William Willman; that the watch was stolen by a negro woman named Willie Reeves; that afterwards the watch was found in the possession of R. S. Gray, a negro barber, who testified that it had been delivered to him by Andrew Thomas, the defendant, to be kept until called for; that the watch had been given to him by Thomas about the last of April or the first of May, 1907; that Thomas told him that the watch belonged to a woman; that witness kept the watch four or five months, and then gave it to a deputy sheriff.

Defendant was convicted, and his punishment fixed at one year in the penitentiary. He has appealed.

Reversed and remanded.

W. G Dinning, for appellant.

The court's instruction on the question of possession of recently stolen property was erroneous. The facts did not warrant the court in charging as a matter of law that the property in this case was recently stolen. It was a question of fact for the jury.

William F. Kirby, Attorney General, and Daniel Taylor, Assistant, for appellee.

The instruction is badly worded, and open to the objection that it is an expression of the court upon the weight of the evidence, as in the Duckworth case, 83 Ark. 192; but appellant has failed to properly save his exception in the motion for new trial, and the instruction is not subject to review. 73 Ark. 455; 75 Ark. 534; 77 Ark. 418.

OPINION

HART, J., (after stating the facts.)

Appellant contends that the court erred in giving the following instruction to the jury: "The possession of property recently stolen, unexplained, or received that has been recently stolen, would be sufficient under this indictment to sustain a conviction, coupled with the fact that the property had been stolen and that the defendant knew that the property was stolen." This instruction is erroneous because it was an expression of opinion by the trial...