133 Ark. 239 | Ark. | 1918
W. H. Sheptine prosecutes this appeal to reverse a judgment of conviction against him for the crime of grand larceny, charged to have.been committed by stealing eleven hogs belonging to John Davis.
On the other hand, the defendant stated that he had bought thirty head of hogs from Ed Howard up the river near his home; that these hogs were marked with,a crop and an under half crop in each ear ; that Howard had marked the hogs himself and that they were very heavily marked and on that account known as “no-eared” hogs; that he carried these hogs down the river and turned them loose in the range near the home of Loekeridge; that he supposed that Loekeridge was looking after these hogs; that he did not know that he was looking after Davis’ hogs; that he carried the hogs down there in a boat and made no effort to conceal his acts; that he went in the night time because it was hot weather and the hogs could stand the trip better at night. He was corroborated by Ed Howard and by other persons who helped him to build the pen and to carry the hogs down there.
Inasmuch as in testing the legal .sufficiency of the verdict the testimony must be viewed in the light most favorable to the State, we need not abstract the evidence adduced in his behalf at length. We think the evidence was legally sufficient to warrant the verdict. The jury might have inferred from it that somebody had taken the hogs of Davis, remarked them, carried them down the river twenty-five miles, and turned them into the range on the opposite side of thé river. We also think the jury was warranted in finding that the defendant was the peu son who did this. He knew well Davis ’ hogs and identitied them at once as soon as he saw them by their flesh marks, although their ear marks had been changed. When the defendant admitted that the hogs belonged to Davis after he had looked at them, Lockeridge remarked that this left him in a devil of a fix. Davis heard this remark. The defendant said nothing, but it may also be inferred that he heard it. The defendant admitted that he carried some hogs down the river which were marked in a similar manner to Davis’ hogs. No account is given anywhere in the testimony as to what became of these hogs. . When all the facts and circumstances are considered together, the evidence adduced by the State, if believed by the jury, was sufficient to justify a verdict of guilty.
An instruction as requested by the defendant was as follows:
“If you find from the evidence that the defendant, Sheptine, carried some hogs, and turned them loose on the range near Lockeridge’s house and that Lockeridge, under the belief that certain hogs he saw running at large on the range were the hogs that Sheptine had brought down there, fed them at intervals, and that afterwards the hogs were claimed by the prosecuting witness and taken by him, these facts are not sufficient to convict the defend.ant of larceny.”
The court refused to give this instruction as requested but modified it by adding at the end thereof the following:
“ Unless you believe from the evidence, beyond a reasonable doubt, the hogs or some of them, carried and turned loose on the range near Lockeridge’s house, was the property of John Davis, and carried there by the defendant with the felonious intent to steal them. ’ ’
The modification of the instruction is assigned as error. The instruction as requested by the defendant was open to the objection that it singled out evidence favorable to the defendant and altogether ignored the theory of the State. The theory of the State was that the defendant had taken the hogs of Davis, remarked them, carried them down the river twenty-five miles and turned them loose on the range on the opposite side of the river to which they had been accustomed to run. Hence the court properly modified the instruction.
Other assignments of error in regard to the refusal of instructions are pressed upon us for a reversal of the judgment, but we do not deem them of sufficient importance to discuss them separately. The instructions refused were either covered by instructions given by the court, or they were open to the objection that they singled out evidence or amounted to a comment by the court on the weight of the evidence. The court fully and fairly covered the respective theories of the parties in the instructions given to the jury, and we find no reversible error in the record.
The judgment will, therefore, be affirmed.