109 Ark. 32 | Ark. | 1913
Appellant, together with one Peter Glass, was indicted for burglary alleged to have been committed by entering the house of G. C. Jackson in the night time, with the burglarious intent of stealing $300 in money being in said house. There was a severance and appellant was convicted and sentenced to three years’ imprisonment in the penitentiary, and this appeal is prosecuted from that judgment. The appellant demurred to the indictment, and assigns as error, in the motion for a new trial, the court’s action in overruling the demurrer, but he points out no defect in it and we have observed none.
The point upon which appellant chiefly relies is that the evidence is insufficient to support the verdict, and it must be said that it is somewhat scant, but we think it legally sufficient to support the verdict. The evidence on the part of the State was to the effect that G. 0. Jackson, the' owner of the building alleged to have been broken into, was engaged in the grocery business in Fort Smith, and had two rooms connected with his store in which he lived with his wifé, and his sister-in-law lived with them and had been keeping company with the appellant, who was entirely familiar with the premises.
Jackson testified that on January 15 he lost between $235 and $240 in silver and bills, a small diamond ring and a gold watch, all of which were in a washstand drawer in the living room, and that he saw the money there a few minutes before he left the house at 7:40 p. m. to get a shave, and as he went out he saw the appellant standing across the street, talking with a companion, and he testified that no one could have gotten to the money without coming through the store or entering the back door, which he had locked before leaving, but which door was open when he returned. He also testified that appellant had been without employment for eight months prior to the loss of his money, although the proof shows he had done a few days’ work in the factory of a folding bed company. Jackson further testified that since the loss of bis money appellant had apparently had plenty of money and had been riding around to neighboring towns on the cars.
Mrs. Jackson testified that appellant’s companion who had been standing out on the street with him came in just after her husband left and bought a nickel’s worth of tobacco, and she was impressed that something was wrong and went into the back room and found the back door slightly open and the money gone. It was shown by a police officer, a jeweler who had sold Jackson the ring, and by appellant’s sister that appellant had given the missing ring to this sister, who lived in Sallisaw, Oklahoma. Appellant undertook to prove an alibi, and offered evidence in support of it, which, while not altogetker consistent, would kave keen sufficient for tkat purpose kad it been credited by tke jury. But it evidently was not believed by tke jury, and tkeir verdict concludes tkat question. If appellant took tke money and tke ring ke must necessarily kave committed tke offense of burglary in doing so, and tke unexplained possession of property recently stolen will warrant a conviction of burglary as well as of larceny where tke larceny is proved to kave occurred at tke time of tke breaking and entry of tke house. Gunter v. State, 79 Ark. 432.
Appellant excepted to various statements made by tke prosecuting attorney in his argument to tke jury, none of wkick would call for tke reversal of the-case, except tke statement tkat “if defendant was not guilty, tke court would kave taken this case from tke jury when tke defendant made tke motion.” Tkere is a supplemental certificate to tke bill of exceptions made by tke trial judge in wkick ke certifies tkat tke above quotation was erroneously copied into tke bill of exceptions, and tkat tke language quoted skould be stricken out as it was not used by tke prosecuting attorney. However tkat may be, tke record wkick skows tke use of tke language quoted also skows tkat appellant objected to it as an improper argument and tkat tke court sustained tkat objection. Tke language above quoted is very similar to tkat employed by tke prosecuting attorney in tke case of Thomas v. State, reported in 107 Ark. 469, 155 S. W. 1165, and for tke use of wkick tkat case was reversed. But there tke court did not sustain tke objection while here tke objection was sustained. In tke Thomas case, supra, it was said that tke language used would ordinarily be understood by jurors of average intelligence to mean an expression of opinion as to tke weight of tke evidence, and tkat, when understood in tkat light, tke failure of tke court to disapprove tke statement would be accepted as an approval of a statement of tke court’s view tkat tke evidence was of sufficient weight to sustain tke verdict and would call for tke reversal of tke case. In suck cases tke court skould leave no uncertainty in tke minds of the jury, and such action should he taken as would remove all doubt about the opinion entertained by the court, and, if this is not done, a reversal only can cure the error. But such action was taken here, if the language was in fact used.
Other questions are presented in the brief which we consider unnecessary to discuss, and the judgment of the court below is affirmed.
