111 Ark. 457 | Ark. | 1914
(after stating the facts). It is first insisted by counsel for the defendant that the court erred in refusing to give instruction No. 11, asked by him. We do not think the court erred in refusing to give this instruction. It is as follows:
“If you find from the evidence in the case that it was the intention of C. H. Murphy and Cage McLemore to form a partnership for the benefit of each, and that each of them contributed either money or services to said partnership, with the understanding that there should be a community of interest in the profits of the business in a fixed proportion, then ypu are told C. H. Murphy was not the owner of the cow referred to -in the indictment, but it was partnership property, and it will be your duty to find the defendant not guilty.”
It is true that in indictments for larceny, the allegation of ownership is material, and must be proved as alleged. Wells v. State, 102 Ark. 627; Fletcher v. State, 97 Ark. 1. The record shows that on the 18th day of October, 1912, Murphy and Cage McLemore entered into a written agreement whereby the title to the cattle was to remain in Murphy until they had been sold, and the purchase money refunded to Murphy; that the title to the cattle at no time was to be in McLemore. There is no attempt made to contradict this evidence, and it is therefore undisputed that Murphy had the title to the property, and the exclusive possession and control thereof. See Cook v. State, 80 Ark. 495.
It is next contended by counsel for defendant that the court erred in giving instructions Nos. 3 and 4, as follows:
‘ ‘ The jury is instructed that the verbal statements of the defendant that have been testified to in this case may be taken into consideration with all other evidence in this case. What the proof may show you, if anything, that the defendant has said against himself, the law presumes to be true, but whether the defendant made such statements, or not, is a question for you to determine from the evidence in the case.” (No. 3.)
“You are instructed that it is the duty of the jury to treat and consider any confessions proven to have been made by the defendant precisely as any other testimony; and, hence, if the jury believes the whole confessions to be true, they will act upon the whole as the truth. But the jury may believe that which charges the defendant and reject that which is in his favor, if from the evidence they find the former to be true and the latter to be untrue. The jury is at liberty to judge of it, like other evidence, by all of the circumstances in the case.” (No. 4.)
The court erred in giving each of these instructions. In regard to instruction No. 3, it may be said that section 23, article 7, of our Constitution, provides that judges shall not charge juries with regard to matters of fact, but shall declare the law. The alleged confession of the defendant stands like any other declaration made by a party to the cause, leaving the jury to judge from all the circumstances, including the nature of the offense, how much, if any, weight should be given to it. As stated by Mr. Justice Biddick, speaking for the court, in the case of Brewer v. State, 72 Ark. 145, “While all parts of the confession must be considered, yet the jury were not required to believe such portions of it as seemed to them unreasonable and improbable.” See, also, Greenwood v. State, 107 Ark. 568, 156 S. W. (Ark.) 427; 1 Greenleaf on Evidence (16 ed.), § 216; Commonwealth v. Killian, 194 Mass. 153, 10 Am. & Eng. Ann. Cases 911; People v. Gukosky, 250 Ill. 231, 23 Am. & Eng. Ann. Cases 297; State v. Berberick, 38 Mont. 423, 16 Am. & Eng. Ann. Cases 1077. The instruction complained of was erroneous in that it told the jury that if it found the defendant made the confessions attributed to him, the law presumed the statements so made by him to be true. This was, in effect, an expression of opinion by the court on the weight of the 'evidence, and was prohibited by the clause of our Constitution above referred to. The jury was not bound to believe as true- the alleged confessions made by the defendant, but it might give to the confessions such weight as the jury found proper, in view of all the other facts and circumstances adduced in evidence.
It is contended by the Attorney General that the jury was made the-sole and exclusive judge of the weight and credibility to be given to the alleged confessions in other instructions given'by the court. This may be true, but it will be readily seen that the instruction complained of is in direct and' irreconcilable conflict with such other instructions, and that such other instructions can in no sense be said to be explanatory of the instruction of which complaint is now made. Therefore, the instruction was erroneous and prejudicial to the rights of the defendant.
In regard to instruction No. 4, it may be said that it allowed the jury to find the defendant guilty if it believed the confession of the defendant to be true. This is not the law. The alleged confession of the defendant was extra-judicial, and the defendant could not be convicted on it alone. There must be other proof to establish the corpus delicti. By which is meant that there must be other proof to show that the cow was feloniously taken by some one, but this may be established by circumstantial evidence. 25 Cyc. 120, and case note to 28 L. R. A. (N. S.) 536. In the case of Harshaw v. State, 94 Ark. 343, the court held that an extra-judicial confession may be considered in connection with other evidence tending to establish the guilt, of the defendant, but that if there is no other evidence of the corpus delicti, the defendant can not be convicted on such confession. See, also, Greenwood v. State, 107 Ark. 568, 156 S. W. 427. Under instruction No. 4, as we have already seen, the jury were warranted in convicting the defendant upon the confession alone if it believed it to be true. Therefore the instruction was erroneous and prejudicial to the rights of the defendant.
It is also insisted by counsel for defendant that the court erred in giving instruction Ño. 2, at the request of the State. The instruction is as follows:-
“You are instructed that in arriving at your verdict in this case, you are not to confine yourselves to the cow, the head of which has been exhibited in evidence, but if you believe from- the evidence in this case, beyond a reasonable doubt, that the defendant, H. E. McLemore, did, in Union County, Arkansas, and within three years next preceding the return of this indictment into court, unlawfully, wilfully and feloniously take, steal and carry away any cow, the property of C. H. Murphy, with the felonious intent to convert the same to his own use, and to deprive the owner thereof, it will be our duty to convict. ’ ’
We are also of the opinion that the court erred in giving this instruction. The indictment in this case charges the defendant with stealing one cow, the personal property of C. H. Murphy, and no other description of the cow is given in the indictment. The evidence on the part of the State was directed to the larceny of a cow with a crumpled horn, and the State elected to prosecute the defendant on the charge of stealing this cow. Therefore, he could not be convicted of stealing another cow at another place and time. See Endailey v. State, 39 Ark. 278.
Other assignments of error are urged by the defendant for the reversal of the judgment in this case. We have carefully examined them, and are of the opinion that the assignments are not matters which are likely to arise on a retrial of the case. Hence we do not deem it necessary to consider or determine them on this appeal.
For the error in giving instructions 2, 3 and 4, on the part of the State, the judgment will be reversed and the cause remanded for a new trial.