44 Ark. 39 | Ark. | 1884
The indictment was in two counts. One charged appellant with the larceny of a cow, .and the other with receiving the cow, knowing it to be stolen. There was a verdict of guilty, and punishment was assessed at two years in the penitentiary. The sufficiency of the evidence to sustain the verdict is questioned.
There were circumstances proved from which the ference maybe drawn, that the animal alleged to have been stolen was of some value, under the rule established in Houston v. State, 13 Ark., 66. It was not necessary to prove more than this under either count. The act of February 12, 1883, makes the larceny of a cow a felony, without regard to value, just as the larceny of a horse, etc., was felony prior to that act. By virtue of the act of February 20, 1883, Mansfield’s Digest, see. 1631, amending section 1360 Gantt’s Digest, one receiving a stolen cow, knowing it is stolen, may be punished as is prescribed for stealing the cow.
There is no direct proof that appellant committed the larceny. He was convicted upon the presumption that the possession of the property alleged to have been stolen, raised against him. But the testimony does not show when the cow was taken from the owner’s possession, nor even how long she had been missed before coming to appellant’s hands.
The possession by a party of stolen goods is a fact from which his complicity in the larceny may be inferred, but this fact, standing alone, is not sufficient to sustain a conviction. It must be made to appear that the property was recently stolen; the possession must be unexplained, and in some form involve an assertion of property in the possessor. Boykin v. State, 34 Ark., 443; Davis v. State, 50 Miss., 86; Wharton, Cr. Ev., sec. 758.
"With this defect in the proof it could not be inferred that appellant was the thief. Beyond this the record does not show that the cow was taken without the consent of the owner. It has never been held that the mere possession of property alleged to be stolen, is evidence of the caption and asportation without the owner’s consent. Taking without consent is an essential ingredient of the ■offense. Without this there is no stolen propei'ty and no larceny. Bailey v. State, 52 Ind., 462; Garcia v. State, 26 Texas, 209; State v. Patterson, 78 N. C., 470.
It would not be safe to sustain a conviction on the meagre proof presented in this record.
Reverse and remand for a new trial.
