The grand jury of the Eastern District of Clay County, at its January term, 1910, indicted the appellant, Lin Blackshare, for larceny and knowingly receiving stolen property, with the intent to deprive the true owner of his property, which indictment, omitting the formal parts, is as follows:
“Count 1.
“The grand jury, in and for the district, county and State aforesaid, under and by the authority of the State of Arkansas, accuse the person named in the caption hereof as defendant of the crime of larceny, committed as follows, towit: On the tenth day of June, 1909, in the district, county and State aforesaid, the person named in the .caption hereof dijl unlawfully and feloniously take, steal and drive away two head of cattle of the value of______dollars, of the value of______dollars, and of the value of______ dollars, the property of A. W. Zoll, against the peace and dignity of the State of Arkansas.
“Count 2.
“The grand jury, in and for the district, county and State aforesaid, under and by the authority of the State of Arkansas, accuse the person named in the caption hereof as defendant, of the crime of receiving stolen property, committed as follows, towit: On the tenth day of June, 1909, said person named in the caption hereof did unlawfully, feloniously and knowingly receive into and have in his possession, with intent to deprive the true owner of his property, two head of cattle of the value of one hundred dollars, of the value of------dollars, of the value of ______• dollars, and of the value of______dollars,- the property of A. W. Zoll, all of which property had at the said time been stolen, and the said person named in the caption hereof, at the time of receiving, and taking said personal property in his said possession, well knew that the same had been stolen; against the peace and dignity of the State of' Arkansas.”
The appellant was convicted upon the second count of the indictment which correctly charged him with the crime of receiving stolen property, knowing that the same had been stolen. The jury returned the following verdict: “We, the jury, find the defendant guilty of receiving stolen property, and fix his punishment at one year in the penitentiary.”
First. It is contended by appellant that this verdict is insufficient to constitute a verdict of conviction for knowingly receiving stolen property because the verdict does not contain a finding that it was done knowingly. The following authorities support the contention that a verdict simply finding defendant guilty of receiving stolen property is not sufficient: State v. Whitaker,
“A special verdict is .one which sets out the facts, leaving the court to draw therefrom the conclusion of law.” Bish. Crim. Proc. § 1006. A general verdict “is a conviction of everything well charged in the indictment.” 1 Bish. Crim. Proc. § 1006a. “A partial verdict is one of conviction as to a part of the charge, and acquittal or silence as to the residue.” 1 Bish. Crim. Proc. § 1009.
The verdict in this case is a partial verdict upon the second count of the indictment and in the form of a general verdict on that count.
Mr. Bishop says: “The test is, that if the verdict sufficiently finds anything, whether for or against the defendant, judgment will be rendered on the one side or the other for what is thus found.” * * * “The language of the verdict, being that of ‘lay people,’ need not follow the strict rules of pleading, or be otherwise technical. Whatever conveys the idea to the common understanding will suffice, and all fair intendments will be made to support it.” I Bish. Crim. Proc. § § 1004, sub. 5; 1005a.
In O’Neal v. State,
This court has heretofore adopted that rule of construction for verdicts. In Strawn v. State,
In Fagg v. State,
Applying the above doctrine of our own cases to the verdict in the present case, it is sufficient to sustain the judgment of conviction for receiving stolen property knowing same to have been stolen. The fact that the jury prescribed the punishment at two }rears in the penitentiary showed that they intended to convict of some offense charged in the indictment. They designated it as “receiving stolen property,” showing that they did not intend to convict of larceny as charged in the first count. The only other count charged the offense of receiving stolen property knowing same to have been stolen.” The words used in the verdict, when taken in connection with the second count of the indictment and the evidence, the charge of the court pertaining to that, leave no room to doubt that the intention of the jury was to find him guilty on that count. Under the charge of the court the jury could not have found the defendant guilty on that count without finding that he received the property knowing same to have been stolen. The language of the verdict was tantamount to a general verdict of guilty on that count, and, according to the rules for the construction of verdicts, it met every requirement of the law, and furnished a certain and correct basis for the judgment of the court.
Second. Without going into detail, it suffices to say that the evidence tended to prove and warranted the jury in finding that one George Johnson took up the cattle in controversy that estrayed from their owner and were running around his place. They were known in the neighborhood as stray cattle. When approached by the owner for the cattle, Johnson claimed that he had turned them out with his cattle, but did not know what had become of them. It was shown that Johnson disposed of the cattle under circumstances which tended to prove, and which warranted the jury in finding, a felonious intent on his part to convert the same to his own use. There was testimony to the effect that it was generally understood that the cattle were posted. But there was no evidence in the record on the part of appellant tending to prove that George Johnson had complied with the estray laws. There was no testimony showing that he attempted to comply with the estray laws or showing what efforts, if any, he had made in that direction.
Appellant asked the court to grant the following prayer:
“You are instructed that, if you find from the evidence that George Johnson took up the steers as estrays and made an effort to post them, and later converted them to his own use, he would not be guilty of larceny, and hence the defendant, Tin Black-share, would not be guilty.”
The court refused, and appellant duly preserved his exceptions. The court gave the following prayers:
“No. 7. Evidence has been offered in regard to the posting of the steers as estrays. You will consider this evidence, as you will all other evidence in the case, as bearing upon the question of the defendant’s intent. It is for you to consider the evidence upon that question and decide the weight, if any, it shall have in determining whether or not the defendant is guilty of either the larceny of these steers or of the offense of knowingly receiving them into his possession, knowing them to have been stolen.
“No. 8. If you believe from the evidence that George Johnson took up the steers as estrays, and attempted to post them, and that the defendant in good faith believed that they had been poste'' ’n such way as to vest in Johnson the title, and that the said Johnson had the right to sell them, and defendant bought them in good faith, then you will find the defendant not guilty.”
The instructions given by the court concerning estrays was as favorable to appellant as the evidence warranted. The court did not err in refusing the prayer of appellant. An effort on the part of one who takes up cattle as estrays to post them •would not justify such one in converting such cattle to his own use. The law requires one taking up estrays to do something more than simply to make an effort to post them. See chapter 149, Kirby’s Digest. An effort, but failure, to comply with the estray laws before converting estrayed animals to one’s own use would be evidence to be considered by the jury as tending to prove the absence of a felonious intent in making such conversion. But that is as far as it could go. Where one has taken and converted the animals of another to his own use, if at the time of the taking there was the felonious intent to deprive the true owner, whoever he might be, of the permanent use .and benefit of his property, the one so taking the animals of another under our statute would be guilty of larceny. One so charged may set up in defense an effort to comply with the estray laws, and the testimony adduced to establish such defense may be considered by the jury in determining the question as to whether the accused took the animals with a felonious intent at the time of the taking to convert them to his own use and to permanently deprive the owner of his property.
“When an estray -is taken up by one who has at the time of the taking the felonious intent to convert same to his own use, it is larceny.” Starck v. State,
Third. Instruction number 4 is as follows: “If you find from the evidence that the defendant did, in fact, buy the steers and pay a consideration therefor, this would be no defense if it was a part of an agreement, or understanding, or conspiracy between the defendant and Johnson by which the larceny of the steers might be accomplished.”
It is contended that there was no evidence of any conspiracy between Johnson and appellant, and that therefore the latter part of the above instruction is abstract. It was in evidence that a certain party was asked why he did not buy the cattle and replied, in the presence of appellant, “that he didn’t want the cattle; that somebody told him that they had not been posted, and that he did not want any trouble,” whereupon appellant stated with an oath: “I will buy them.”
A witness who lived with Johnson is shown to have testified as follows:
“One night Blackshare came over there and stayed until bedtime. Blackshare and Johnson went out in the lot, and were out there probably an hour. Next morning Johnson went to his (witness’) room before day and told him to get up, that he wanted him to help drive this yoke of cattle across the slough, and, I think, described the cattle. He called them butt-headed cattle — one lined black and one black. He got up and helped Johnson cross the slough; went across the country through the woods. When they came to a cypress slough, Johnson told him to go up the slough and see if he could find a place to cross, and while he was gone Johnson took the cattle and went down the slough and tied them, and came back and met him and he saw a couple of men ride up and untie these cattle and ride off with them. Believe he said there was some horse tracks there, and he asked who had been there. Johnson asked if he didn’t see Blackshare pass and he said no, and Johnson told him that Blackshare came by and threw him the money for the cattle, and he took it from his pocket. It was wrapped in a brown paper and counted out fifty dollars. Couldn’t see any road where the cattle were led. Witness asked George Johnson what he was taking the cattle through the woods for, and George said there was a fellow named Happy Jack that he didn’t want to know anything about it.”
There was -no objection to this testimony. This testimony, taken in connection with the evidence that appellant admitted that he bought the cattle from Johnson, paying for same the sum of fifty dollars, was sufficient, in connection with the other evidence, to warrant the court in submitting to the jury whether or not there was a conspiracy between appellant and Johnson to steal the. cattle. The instruction was not abstract.
Fourth. The second count of this indictment, as stated, charges that the defendant knowingly received property stolen by another. This second count charges that the defendant did unlawfully, feloniously and knowingly receive into and have in his possession, with the intent to deprive the owner of his property, the two steers in question, and the material allegations of this count are that in this district, of this county, and within three years before the date of this indictment, the defendant received from a person who had stolen the steers in question, knowing them to have been stolen, with the intent to deprive the true owner of his property by so receiving them. If the evidence warrants it and requires it, the defendant could be found guilty of either of these counts, but not of both of them.
It is urged that the instruction, as read to .the jury, did not contain the words “knowing them to have been stolen.” But we find nothing in the record to show that the instruction containing these words was not read to the jury. The bill of exceptions contains the instruction as above set out, and it shows that the words “knowing them to have been stolen” were inserted in the instruction before “either of defendant’s counsel had argued the case to the jury.” There is no affirmative showing that the words mentioned were not read. The bill of exceptions indicates that they were read, and, in the absence of a showing to the contrary, that would be the presumption.
Fifth. The last contention is that the court erred in permitting the prosecuting attorney to make improper remarks in his closing argument. Counsel assert that the remarks were as follows: “That the defendant failed to put George Johnson (the alleged thief) and Isaiah Johnson, his father, and Jim Blackshare, a son of defendant, on the witness stand toJ contradict statements made in the trial.” We find no such assignments of error in the motion for new trial. Hence can not consider it. The record does show that the prosecuting attorney in his closing argument made the following remarks: “Why are all these people here? They came here to see if the law can be enforced; and I want to know, and they want to know, if property can be stolen and no explanation be offered, and a man go scot free.” The ruling of the court in permitting the above remarks is prop.erly presented for our consideration. The remarks were but the expression of the opinion of' the prosecuting attorney. They were not calculated to influence a jury of sensible men to disregard the oath they had taken to try the cause according to the law and the evidence and a true verdict render. A majority of the court do not consider the remarks prejudicial error. For, fairly construed, the comments of the attorney could hardly be said to have reference to the failure of appellant to testify as a witness in explanation of the charge, but rather to the failure of the evidence adduced in the opinion of the attorney, to afford an explanation.
The judgment is therefore affirmed.