Thompson v. State

• Decision Date: 15 December 1894
• Citation: 28 S.W. 794
• Parties: THOMPSON v. STATE.
• Court: Arkansas Supreme Court

28 S.W. 794

THOMPSON v. STATE.

Supreme Court of Arkansas.

December 15, 1894.

Appeal from circuit court, Sebastian county; Edgar E. Bryant, Judge.

Martin Thompson was convicted of the larceny of a heifer, and appeals. Reversed.

Edwin Hiner, for appellant. James P. Clarke, Atty. Gen., and Chas. T. Coleman, for the State.

HUGHES, J.

This is an appeal from a judgment of conviction of larceny of a heifer, 18 months old, unmarked and unbranded, running at large on the range. The defendant a ked the following instruction: "If you find from the evidence that the defendant did take and carry away the yearling of Patterson, as charged in the indictment, but find that at the time of said taking and carrying away, that the yearling was over twelve months old, and was unmarked and unbranded, and running at large, you will find the defendant not guilty," which instruction the court refused to give, and the defendant excepted. The court, on his own motion, gave the following instruction, over the objection of the defendant: "If you find beyond a reasonable doubt that defendant, within three years next before this indictment, found in the Ft. Smith district of Sebastian county, took and converted to his own use, with the felonious intent to steal and deprive the owner thereof, a heifer yearling, the property of A. H. Patterson, then you will find the defendant guilty; otherwise you will find him not guilty." The defendant was convicted, and filed his motion for a new trial, on the ground that the court erred in giving the instruction on his own motion, and in refusing the instruction asked by defendant. The court overruled defendant's motion, and he appeals.

Section 1655 of Mansfield's Digest, taken from Rev. St. c. 44, div. 4, art. 8, § 4, is as follows: "Owners of cattle, hogs or sheep, which run at large in the range or woods, shall designate such animals, if over twelve months old, by brands or ear marks; otherwise, if taken or converted to the use of any other person, such person shall not be deemed guilty of larceny, but the owner may have his action for the value of such unmarked or unbranded animals." Article 4, div. 4, c. 44, Rev. St., defined the crime of larceny, and fixed the punishment. The division of larceny into grand and petit did not then exist. The law was afterwards changed by the introduction of this distinction. Act Dec. 17, 1838, § 4, and Act July 21, 1868, as amended by Acts Jan. 23, 1875, and March 22, 1881 (Mansf. Dig. § 1627). In 18...