| Ark. | Jan 23, 1922
Appellant was indicted in the Polk Circuit Court, as principal, for the crime of grand larceny, by unlawfully and feloniously stealing a cow, the property of Ira McCown, in Polk County, Arkansas, on the 10th day of September, 1921. At the same term of the court he was tried and convicted of the charge, and as punishment therefor sentenced to serve a term of one year in the State penitentiary. From the judgment of conviction he has duly prosecuted an appeal to this court.
The evidence adduced on behalf of the State tended to show that appellant was a member of an organization in Polk County, Arkansas, banded together for the purpose of stealing generally; that, pursuant to the intent and purpose of said organization, Jim Murray, Charlie, Jess and Allen Nichols did steal and drive out of said county into Oklahoma a cow belonging to Ira McCown; that after the cow was driven across the line into Oklahoma appellant appeared and assisted the others in butchering her.
In order to convict one of the crime of grand larceny when charged as a principal in the crime, the proof must either show that he committed the crime in person or that he was present, aiding and abetting, or ready and consenting to aid and abet in the crime. The proof, at most, only tends to show that appellant was an accessory before or after the fact of the crime. Before he could have been convicted of the larceny under the evidence adduced by the State, it would have been necessary to charge him as an accessory either before or after the fact of the crime. Roberts v. State, 96 Ark. 58" date_filed="1910-10-03" court="Ark." case_name="Roberts v. State">96 Ark. 58; Hunter v. State, 104 Ark. 245" date_filed="1912-06-03" court="Ark." case_name="Hunter v. State">104 Ark. 245; Jones v. State, 108 Ark. 447" date_filed="1913-06-02" court="Ark." case_name="Jones v. State">108 Ark. 447. There was a fatal variance between the proof and the crime charged in the indictment.
For the error indicated, and confessed by the Attorney General, the judgment is reversed and the cause remanded for proceedings not inconsistent with this opinion.