Wells v. State

• Decision Date: 18 March 1912
• Parties: WELLS v. STATE
• Court: Arkansas Supreme Court

145 S.W. 531

102 Ark. 627

WELLS v. STATE

Supreme Court of Arkansas

March 18, 1912

Appeal from Monroe Circuit Court; Eugene Lankford, Judge; reversed.

Judgment reversed, and cause remanded.

H. A Parker, for appellant.

1. Instruction No. 1 on the question of alibi as a defense is erroneous; while instruction No. 4, given at appellant's request, correctly states the law. The two are in irreconcilable conflict.

If a defendant who relies upon the plea of alibi fails to produce a preponderance of evidence in support of that plea, still if his proof upon that question raises a doubt as to defendant's guilt upon the whole case, it is the jury's duty to acquit. 103 Ala. 36; 94 Ala. 14; 52 P 352; 59 Ark. 379; 55 Ark. 244; 24 Cal. 61; 31 Fla. 166, 172 Ill. 367; 25 Cyc. 152.

The giving of contradictory instructions is reversible error. 101 Ark. 37; 74 Ark. 437; 72 Ark. 31.

Hal L. Norwood, Attorney General, and William H. Rector, Assistant, for appellee.

There is no conflict in the instructions on the question of alibi. Instruction No. 1 properly placed the burden on the defendant to establish the plea, and No. 4 informs the jury that the defense is made good when from all the testimony in the case the jury have a reasonable doubt whether or not the defendant was present, etc. Taken together, the two state the law with reference to alibi.

OPINION

MCCULLOCH, C. J.

Appellant was convicted under an indictment for grand larceny, charging him with having stolen 1,100 pounds of seed cotton, of the value of $ 40, the property of H. Whitefield and W. L. Jeffries. The evidence tends to show that Whitefield was a tenant of Jeffries on the latter's plantation in Monroe County, and that the crop was mortgaged to Jeffries to secure the rent and also a debt for supplies. Whitefield had turned the crop over to the agent of Jeffries, who weighed up the cotton in a pen on the farm, from which the evidence tends to show it was stolen.

It is contended that there was a variance between the allegations and the proof as to ownership. The rule established by our decisions as well as by other authorities is that in indictments for larceny the allegation as to ownership is material and must be proved as alleged. Merrit v. State, 73 Ark. 32, 83 S.W. 330. The proof in this case showed that the cotton was in the actual custody of Hogan, the agent of the mortgagee, Jeffries. The special ownership could therefore have been laid in him, and it would have been sufficient to sustain the indictment, but the general ownership could also have been alleged and proved, and it was sufficient to do so. Rapalje on Larceny and Kindred Offenses, § 92. The agent of the mortgagee was also the agent of the mortgagor for the purpose of disposing of the property; and as both had an interest in the property, and it was in the possession of the agent of both, it was sufficient to allege a joint ownership by them.

It is claimed that the cotton was stolen from the pen in the field, and the evidence is sufficient to warrant a finding that it was stolen one night after it had been weighed up by Hogan. Wagon tracks were traced from the pen, through the field and woods, and signs of cotton on the limbs of trees and bushes were seen along the route of the wagon through the woods. The wagon was traced from the cotton pen to the house of one Will Chestnut, where it appeared to have stopped, and then passed on. Will Chestnut's wife, Callie, testified that that night appellant and his wife drove up to the house on a wagon load of seed cotton, and inquired about getting out of the gate. Will Chestnut testified that the next day he met appellant at a certain store, and that the latter told him that he had passed the house the night before with some cotton, and asked witness not to say anything about it.

Appellant introduced a number of witnesses tending to show that he attended a party or dance at a house several miles...