| Ark. | Jun 21, 1915
(after stating the facts). In Douglass v. State, 91 Ark. 492" date_filed="1909-10-04" court="Ark." case_name="Douglass v. State">91 Ark. 492, we said: “In order to constitute larceny, the taking must ¡joe done with felonious intent; the taking of the property and its possession is only a fact, and in itself it is not sufficient to raise a presumption of a guilty intent; and, standing alone, it would not be sufficient to sustain a conviction of larceny.” Citing Mason v. State, 32 Ark. 238" date_filed="1877-11-15" court="Ark." case_name="Mason v. State">32 Ark. 238; Gooch v. State, 60 Ark. 5" date_filed="1894-12-01" court="Ark." case_name="Gooch v. State">60 Ark. 5; Sutton v. State, 67 Ark. 155" date_filed="1899-11-11" court="Ark." case_name="Sutton v. State">67 Ark. 155; Jones v. State, 85 Ark. 360" date_filed="1908-02-24" court="Ark." case_name="Jones v. State">85 Ark. 360.
The court erred in refusing to allow appellant to prove that, the owner of the cultivator had told appellant’s brother that appellant might take the cultivator, and that this permission on the part of the owner had been communicated to appellant. This was not in the nature of hearsay testimony, but was evidence tending to prove a substantive fact, towit, the permission of the owner for appellant to take the cultivator, which was a very material fact; for, as is shown, the gist of the offense of larceny is that the property must be taken with a felonious intent. It is not hearsay evidence to prove that the owner told a third party that the appellant could take the property, and that this party communicated to appellant what the owner said. If the owner did give such permission to appellant’s brother, it was a fact which it was competent for appellant to prove. And if the witness communicated this information to appellant, this was also á fact which it was competent for appellant to prove by the witness who communicated the information, .and was not in the nature of hearsay testimony.
The proffered testimony was not an offer to prove what appellant’s brother said, but it was- an offer to show that the owner of the property did grant permission for appellant to take the same, and -an offer to show the fact that this permission had been communicated to appellant. The testimony was as competent in this form as if it had been testified to either by the owner of the property himself or by the appellant. The fact that permission was granted and 'Communicated to appellant through the intervention of an agent or third party did not make it hearsay evidence.
The court therefore erred in excluding the proffered testimony, and for this error the judgment is reversed and the cause is remanded for a new trial.