Dodson v. State

93 So. 579 | Miss. | 1922

Anderson, J.,

delivered the opinion of the court.

Appellant, J. W. Dodson, was indicted and convicted in the circuit court of Claiborne county of grand larceny, and sentenced'to the penitentiary for three years, from which judgment he prosecutes this appeal.

The larceny of which appellant was convicted consisted of the stealing by him from the Natchez Dressed Beef Company, a corporation, of two thousand three hundred cedar and locust fence posts of the value of about three hundred dollars. The Natchez Dressed Beef Company owned Sunnyside Plantation in Claiborne county, consisting of about four hundred acres, which it used for pasturing its cattle. Appellant leased it for the years 1919 and 1920. One Turner was the manager of this plantation for the Natchez Dressed Beef Company. The state proved and the appellant, who testified in his own behalf, admitted that during the winter of 1919-1920 appellant cut and removed from the said plantation and sold to several different persons about two thousand three hundred locust and cedar posts, the proceeds of which he appropriated to his own use.

There is a material difference in the testimony of Turner, the manager for the Natchez Dressed Beef Company, and the appellant, as to the terms of the lease. Turner testified that during the two years for which the place was leased appellant was to have it free of rent except he was to care for it and keep it in repair. Appellant, on the other hand, testified that he built two rooms and a porch to the residence on the place and covered the same, and built about one mile of wire fence, which was worth about six hundred, and that Turner, as manager for the dressed beef company, recognizing the necessity and value of such improvements, agreed for appellant to cut from the place and sell a sufficient number of fence posts to repay himself for such improvement. In other words, appellant claimed that the cutting and removal and appropriation of the timber to his own use was under a bona-fide claim of right. Turner in his testimony denied any such agreement, and stated that whatever improvements appellant made on the place was made alone for the benefit that might accrue to him during the period of his lease. The evidence for both the state and the appellant showed that the posts in question were cut and hauled to Engleside, a railroad station about five miles distant from the Sunny-side plantation, that they were sold to several different parties, and delivered at said railroad station in wagon-loads of not more than forty posts, and that fifteen cents a post was .the maximum value, and that therefore each load cut and delivered would not exceed in value the sum of seven dollars.

The assignment of error most strongly urged and with a good deal of show of reason is that the trial court erred in refusing to grant an instruction asked by appellant directing the Jury to acquit appellant of the charge of grand larceny.

Appellant contends that this case comes within the principle announced in Scarver v. State, 53 Miss. 407. It was held in that case that several successive petty larcenies could not be consolidated so as to constitute grand larceny. It is contended that in the case at bar each wagon-load removal and delivery of the posts in question constituted a separate and distinct asportation, and the value of each load being less than the sum of twenty-five dollars, at most the state only showed that appellant was guilty of several petty larcenies. The principle declared in Scarver v. State, supra, was reaffirmed in Autman v. State, 126 Miss. 629, 89 So. 265. It was said, however, in Scarver’s Case that where successive takings are shown to have been one continuous transaction, the thief may be convicted of the final carrying away, and if the value be sufficient it is grand larceny.

The question is whether the cutting and removal and sale of these fence posts in wagonloads of less value than twenty-five dollars amounted to so many petty larcenies, or -ftas from beginning to end the result of one design, or, as said in the Scarver Case, amounted to one continuing transaction. We think the evidence tended to show that it was the result of one design, or constituted one continuing transaction, and was sufficient to justify the- verdict of the jury in finding the appellant guilty of grand larceny. It is true the direct evidence for the state is silent on this question; there is only whatever inference of fact which may be reasonably drawn therefrom. But the evidence of the defendant himself, as witness in his own behalf, supplied the necessary direct proof that the cutting and removal of this timber was one continuing transaction. For the appellant admitted as much when he stated that he had, by virtue of an agreement with Turner, cut and removed and sold these posts and appropriated the proceeds to his own use for the purpose of reimbursing himself for the improvements, made by him on the plantation referred to. It is true he undertakes to show that he did it under a bona-fide claim of right, but the jury, if they saw fit, from the evidence in the case, had a right to believe his evidence in part and reject it in part, and therefore the jury were justified from the evidence in finding that appellant told the truth when he testified that the cutting and removal and sale of the posts was the result of one design and constituted one continuing transaction, and that he testified falsely when he stated that it •was done under a claim of right.

The testimony of Mayes should have been excluded as wholly immaterial, but it was harmless to appellant.

We find no merit in, the other assignments of error.

Affirmed.