77 Ark. 247 | Ark. | 1905
Lead Opinion
(after stating the facts.) This is an appeal from a judgment assessing a fine against a non-resident for herding, grazing, and permitting his cattle to run at large in the Northern District of Sharp County. ' The evidence was amply sufficient to support the judgment, and we see nothing in the charge .of the court prejudicial to the defendant, unless it be in the third instruction given by the court, which is set out in the statement of facts. That instruction told the jury that if the cattle of the defendant were being herded or grazed or permitted to run at large in this State, and he, while in Arkansas, procured, participated in or assented to the same,” then it would be the duty of the jury to convict him. The only doubt about this instruction is presented by the word “assented” therein. If the cattle of defendant, without being driven or induced by any act on his part, had come into this State, and were grazing here of their own accord, we do not think that the mere fact that he acquiesced or made no objection thereto would make out a case against him, under the statute. Beattie v. State, 73 Ark. 428.
But, taking all the instructions together, we are of the opinion that the word “assented” was used by the court in the sense of “consented,” In other words, we think that the meaning of this part of the instruction was that if the cattle of the defendant were being herded or permitted to run at large in the county named, and he consented thereto, he was guilty. This instruction told the jury in substance that if the cattle of the defendant were herded or permitted to run at large in the district in this State named in the indictment, with the knowledge and consent of the defendant, he was guilty, and this we think was in accordance with the law. Kirby’s Digest, § 7830; Smith v. State, 71 Ark. 478.
The evidence on the part of the State, if true, showed clearly that defendant was guilty, while, if the testimony of the defendant was believed, the jury could not have convicted him under any view» of the instructions given by the court. For this reason, while we think the word “assented” in the instruction was not the best word to use, we do not think it was prejudicial, under the evidence in this case. There were other objections raised, but on the whole case we are of the opinion that no prejudicial error was committed.
The judgment is therefore affirmed.
Rehearing
ON MOTION TO REHEAR.
Counsel for appellant insists that the evidence does not sustain the verdict. He admits that several witnesses testified that the defendant told them that he put his cattle on the range, but he contends that these witnesses do not say that he put them on the range in the Northern District of Sharp County. But the testimony of these witnesses, when taken as a whole, makes it clear that that was what they intended to state. For instance, Josiah Burson testified that'he lived in the Northern •District of Sharp County of this State; that defendant had 19 or -20 head of cattle, which ran on the range in that district and county. He further testified that, while the- cattle were on the range in that district of Sharp County, the defendant Beattie came down there and inquired about his cattle. The witness then testified as follows: “He then at my house told me that he put said cattle in the range, and' thought he had a right to put them on said range, and that he would spend five hundred or a thousand 'dollars before he would take them out of said range.” The witness further testified: “I have seen the defendant Beattie frequently with said cattle on the range.' All these things to which I have testified occurred in the Northern District of Sharp County, Arkansas.”
It was clearly shown that the cattle of defendant were on the range in that district of Sharp County, and other witnesses testified to similar" statements made by the defendant.
We think the jury were justified in finding from this evidence that the defendant was guilty as charged. Motion to rehear overruled.