Baker v. State

| Ark. | Mar 3, 1894

Hughes, J.

_ i. whenobto^ornpetency oí grand jurors. The demurrer of the appellee to the second, third and fourth grounds of appellant’s motion . ° x to quash the indictment was properly sustained. There was no evidence to sustain the first and fifth grounds of the motion. The sixth ground was merely formal.

“ Sec. 2098, Mansf. Dig., which provides that ‘every person held to answer a criminal charge may object to the competency of any one summoned to serve as a grand juror, before he is sworn, on the ground that he is the prosecutor or complainant upon any charge against such person, or that he is a witness on the part of the prosecution,’ applies only to persons held to answer criminal charges which have not been previously investigated and acted upon by a grand jury, and not to a person already indicted.” Hudspeth v. State, 50 Ark. 534" date_filed="1888-05-15" court="Ark." case_name="Hudspeth v. State">50 Ark. 534.

% Wheil properly1106 The appellant’s motion for a continuance that he might procure the testimony of Cora Dixon was properly denied, as the appellee admitted that what the motion stated she would testify to was true, which related only to the question of guilt upon the first count of the indictment, upon which appellee was acquitted. He was not prejudiced by the refusal of the court to continue the cause for this witness’ testimony.

3. Asió incompetent evideuce, The evidence of R. S. Ready tending to show that , the appellant committed the burglary and larceny, after the admission by the appellee that what the motion for continuance stated Cora Dixon would swear was true, was, as the record shows, brought out on cross-examination by appellant’s counsel, and he cannot be heard to complain of this.

4. wheuerstruction not prejudicial. It is urged that the court erred in giving the second, third and fourth instructions, which related to the count in the indictment for larceny. ‘‘An error in rejecting a a prayer for an instruction is not prejudicial if it appears that the jury found a state of facts to which it would have been inapplicable.” Farris v. State, 54 Ark. 4" date_filed="1890-11-29" court="Ark." case_name="Farris v. State">54 Ark. 4.

The court told the jury that the facts stated as the evidence of Cora Dixon were admitted by the State, and must be taken as true. This admission by the State was a virtual abandonment of the first count of the indictment.

The appellant contends that the first instruction for the State is erroneous, because it stated to the jury that the statements of the defendant in relation to his possession of the stolen property were all “facts to be considered by the jury in arriving at their verdict.” If there was any error in this instruction, it was cured by the fourth instruction given. Perhaps it would have been better if the court had stated in the first instruction that the statements of the defendant in relation to his possession of the stolen property should be considered by them in arriving at a verdict. Standing alone, we see no substantial error in it.

The proof showed that the property had been recently stolen before it was found in the possession of the defendant. We think there was no error in refusing the several instructions asked by the appellant,

s. Right of hípresétírhy counsel. It is assigned as error that the verdict of the jury was returned in the absence of appellant’s counsel, and that he was not called. He did not ask that his counsel should be present. He could waive his presence. There was no reversible error in this. A defendant on trial for a felony “ must be present whenever any substantive step is taken in his- case, unless it appears that no prejudice could by any possibility result from his absence.” Mabry v. State, 50 Ark. 492" date_filed="1888-05-15" court="Ark." case_name="Mabry v. State">50 Ark. 492 ; Bearden v. State, 44 Ark. 331" date_filed="1884-11-15" court="Ark." case_name="Bearden v. State">44 Ark. 331. “He has no right to abscond, and then to complain of his own absence.” Sec. 2213 Mansf. Dig.; Gore v. State, 52 Ark. 285" date_filed="1889-11-15" court="Ark." case_name="Gore v. State">52 Ark. 285. It is a constitutional right of a defendant on trial for felony “to be heard by himself or counsel.” Sec. 10, art. 2, const. 1874. If the absence of defendant’s counsel when a verdict is returned against him in a felony would in any case be a ground for reversal, we think it sufficiently appears in this case that the appellant could not have been prejudiced by the absence of his counsel when the verdict was returned into court.

6. as to venue. The appellant insists that the venue was not proved as laid in the indictment. This is the most difficult and troublesome question in the case. There does not seem to be any evidence that the appellant had the stolen watch in his possession in Phillips county, where he was indicted and tried, prior to the time he carried it back from Pine Bluff to Ready, the owner, in Helena in said county. According to Ready’s testimony, which the jury might have believed, and doubtless did believe, the appellant told him, when he brought the watch back to Helena and received the reward of $25, and his expenses, $7.50, that he had recovered the watch at Clarendon, Monroe county, at the depot of the Cotton Belt railroad, on the 24th of February, having borrowed from the depot agent $20, which he paid for information which enabled him to recover it; that he had not then had any description of the watch. Ready says that, on the 1st day of March following, the appellant telegraphed him from Pine Bluff, Ark., as follows: ‘ ‘Will try and get watch and man for fifty dollars. ” “That, after Baker was arrested, he told me that he was very much surprised at being indicted for burglary, and for stealing my watch ; that he got the watch in Pine Bluff with some other things — some diamonds, three or four silver watches and other jewelry — from the thieves ; and that he borrowed $30 and got a quart of whiskey, which he gave for the jewelry. I reminded him that he told me in March that he got the watch in Clarendon. He became very much confused, and said that I was mistaken ; ■that he told me he got it at Pine Bluff.” From this evidence the jury might have believed that appellant received the watch in Clarendon on the 24th of February, and concealed the fact until after the 1st of March following, and until after he sent the telegram to Ready, on the 1st of March, seeking to have Ready offer a reward for the watch before he disclosed that it was in his possession.

It is contended by the appellant that “the existence of the felonious intent to deprive the owner of the specific stolen property received by him must be proved; ” that the “fact that appellant sought an advantage for himself, or to gain money as a condition of the return of the watch, does not constitute the crime charged.”

In Regina v. O' Donnell, 7 Cox, Cr. Cas. 337, it was held that if property be taken with the intention of holding it until the rig'htful owner should pay a certain sum, and obliging such payment, the offense of larceny was complete. In Commonwealth v. Mason, 105 Mass. 163" date_filed="1870-10-15" court="Mass." case_name="Commonwealth v. Mason">105 Mass. 163, Morton, J., said: “We think when a person takes property of another with the intent to deprive the owner of the property taken, or of its value, such intent is felonious, and the taking is larceny.” In Berry v. State, 31 Ohio St., 227, in which the cases cited above are cited, it is said: “In an exact sense, it is not true that an intent to appropriate permanently the property taken is a necessary ingredient in the crime of larceny, if by permanent appropriation is meant keeping the specific property from the possession of the owner.” And in the syllabus of that case it is laid down that “the wrongful taking and carrying away of the property of another, without his consent, with intent to conceal it, until the owner offers a reward for its return, and for the purpose of obtaining the reward, is larceny.” The immediate and unconditional possession of stolen goods is the right of the owner. State v. Pardee, 37 Ohio St. 66.

The section of the statute under which the defendant in this case was convicted reads as follows : “Whoever shall receive or buy any stolen g-oods, moneys or chattels, 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.

In the syllabus of the case of People v. Wiley, 3 Hill (N. Y.), 194, it is said : “ So, though the purpose be, not to deprive him of the specific goods, but of some other portion of his property ; e. g., to defraud him into the payment of money by way of reward for the restoration of the goods.” Bishop and Wharton have both stated the rule substantially as above stated.

Under the authorities quoted, if the jury believed from the evidence in this case — and they might have believed — that the appellant received the stolen watch at Clarendon on 24th February, and concealed the fact from Ready, the owner, knowing the property to be Ready’s, with the intention of defrauding Ready into the payment of money to him by way of reward for the restoration of the watch, the offense of receiving stolen property was made out under the statute. And if the'appellant returned to Phillips county with the stolen watch, with a purpose to exact of Ready a reward for its return, and had the watch in Phillips county, with the intention of requiring Ready, as a condition of its return, to pay him money therefor, he was guilty, under the statute, the venue being thus proved. We are of the opinion that there was evidence from which these facts might have been found by the jury. This court will not reversé upon the weight of evidence, or where there is evidence upon which the verdict of the jury might have been found.

7. impeachingf witness on cross-exammOn cross-examination the appellant was asked, if he . . . _ had not been confined m the penitentiary of Texas for receiving stolen goods, and answered that he had. This is assigned as error. It was held recently in Holder v. State, ante, p. 473, that such a question on cross-examination was proper, as affecting the credibility of the defendant when a witness in his own trial.

The questions of fact were all for the jury, and we cannot say there is not evidence to support the verdict.

Affirmed.