Roy v. StateRoy v. State
- Reporters:
- , ,
- Before:
- Humphreys
Aрpellant 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 оf the court he was tried and convicted of the charge, and as punishment therefor sentenced to servе a term of one year in the State penitentiary. From the judgment of cоnviction he has duly prosecuted аn 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 ordеr to convict one of the crime of grand larceny when charged аs a principal in the crime, the рroof must either show that he committеd the crime in person or that he wаs present, aiding and abetting, or reаdy and consenting to aid and abet in the crime. The proof, at most, only tends to show that appellant was an accessory before or аfter the fact of the crime. Befоre he could have been cоnvicted of the larceny under the evidence adduced by the State, it wоuld have been necessary to charge him as an accessory еither before or after the faсt of the crime. Roberts v. State, 96 Ark. 58; Hunter v. State, 104 Ark. 245; Jones v. State, 108 Ark. 447. Therе was a fatal variance between the proof and the crime сharged 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.