Thrash v. State

• Decision Date: 11 June 1906
• Parties: THRASH v. STATE
• Court: Arkansas Supreme Court

96 S.W. 360

79 Ark. 347

THRASH v. STATE

Supreme Court of Arkansas

June 11, 1906

Appeal from Monroe Circuit Court; George M. Chapline, Judge affirmed.

STATEMENT BY THE COURT.

The grand jury of Monroe County returned an indictment against appellant, Wes Thrash, containing two counts, one charging the crime of grand larceny by stealing a hog, and the other the crime of receiving stolen property. He was tried and convicted. The jury returned a general verdict, without specifying the count upon which the verdict rested, and fixed the punishment at a term of one year in the penitentiary.

Affirmed.

George F. Chapline, for appellant.

1. The possession alone of stolen property is not sufficient to sustain a conviction of larceny. It must be shown that the property was recently stolen, and the possession must be unexplained. 44 Ark. 41; 34 Ark. 443; 54 Ark. 621; 55 Ark 224. No felonious intent is provided in this case. Kirby's Digest, § 1821; Bish. Cr. Law, 427; 32 Ark 239.

2. The court erred in refusing to exclude and withdraw from the jury the testimony of witness Park. Witness admitted his infamy on cross-examination. 70 Ark. 288. As distinguishing between "impeachment" and "competency" of witnesses, see Kirby's Digest, §§ 3138, 3095. Since in our statute there is nothing said about the competency of witnesses in criminal cases, the common law must be taken as the guide, which makes petit larceny an infamous crime. 1 Bish. Cr. Law, §§ 743, 744; 6 F 861; 3 Eng. Ev. 204, and cases cited.

3. Appellant could not be convicted of receiving or buying a hog, knowing it to be stolen, because that animal is not mentioned in the statute. Kirby's Digest, §§ 1828, 1829.

Robert L. Rogers, Attorney General, and G. W. Hendricks, for appellee.

1. Appellant's explanation of his possession is not satisfactory, and there is ample evidence to support the verdict.

2. It is settled that the admission of a witness is not competent evidence of his infamy for the purpose of disqualifying him, although it may be shown to affect his credibility. 33 Tex.Crim. 177; 94 Tenn. 505; 3 Enc. of Ev. 207, and cases cited. The record of the conviction, if in existence and accessible, must be produced. 1 Greenleaf, Ev. § 375; 58 Ark. 278; 70 Ark. 282; 49 Ark. 156; 33 Ark. 475.

3. Granted that appellant could not be punished under Kirby's Digest, § 1829, but see Ib. § 1830.

OPINION

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

1. It is contended by appellant that the second count of the indictment for receiving stolen property does not charge the commission of a public offense, and in support of that contention it is pointed out that section 1829, Kirby's Digest, relating to the crime of receiving stolen animals, does not mention hogs. Counsel for appellant has doubtless overlooked section 1830, Kirby's Digest, which provides that "whoever shall receive or buy any other goods, money or chattles, knowing them to be stolen, with intent to deprive the true owner thereof, shall, upon conviction, be punished as is, or may be, by law prescribed for the larceny of such goods or chattels in cases of larceny."

The indictment, in apt terms, charges an offense under this section.

2. The State introduced as a witness one James Parks to prove an essential element of the crime, and on cross-examination he admitted that he had been convicted of petit larceny before a justice of the peace of the county. The defendant then asked that the testimony be excluded on the ground that he was incompetent to testify, and saved exceptions to the refusal of the court to exclude the testimony. This court held in Vance v. State, 70 Ark. 272, 68 S.W. 37, that the incompetency of a witness by reason of previous conviction of an infamous crime could be established only by introduction of the record of the conviction--that the admission by the witness of his...