| Ark. | Dec 3, 1906
Lead Opinion
(after stating the facts.) The indictment is good. The term “bailee” is used in the statute, section 1839, Kirby’s Digest. Alleging that a person received as a “bailee” certain money is sufficient to advise such person that he came into possession of the money of another to be held for the other for some special purpose, upon the accomplishment of which special purpose the money is to be returned or delivered over. Schouler on Bailments, § 2.
The indictment does not charge two separate and distinct offenses. The crime alleged in the indictment is embezzlement which, committed under the circumstances and in the manner detailed, the statute denominates also larceny. Sec. 1839, Kirby’s Digest. Only one offense is alleged.
The court erred in permitting the prosecuting attorney to argue that Wyman and the defendant “entered into a conspiracy to rob and were conspirators in robbing the Ft. Smith Commission Company, that Wyman would take the tickets out of the drawer after they had been made by the shipping clerk, so that they would not go to the bookkeeper, and that the defendant would collect the bills and divide the spoils, with Wyman; that Wyman had been arrested for .it, had forfeited his bond and run away, left the country.” There was no evidence upon which to ground this argument. It was not shown that Wyman and appellant were in a' conspiracy to rob the Ft. Smith Commission Company. Even had such conspiracy been shown, the acts and declarations of one of the conspirators in-the absence of the other, after the object of the conspiracy had been accomplished, could not be used in evidence against the one on trial. Benton v. State, 78 Ark. 284" date_filed="1906-03-31" court="Ark." case_name="Benton v. State">78 Ark. 284, and authorities cited. . It was therefore highly prejudicial to appellant for counsel to assert as a fact that appellant was in a conspiracy with another to rob the Ft. Smith Commission Company, and that the other conspirator had been arrested, had given bond, and had fled the country. Thus counsel attempted by assertion, without proof, to make the impression upon the jury that one was associated in crime with appellant and had shown by flight his consciousness of guilt. If the jury accepted as true the assertion of counsel, the inevitable conclusion would be that appellant was also guilty. For in a conspiracy of two one is necessarily as guilty as the other. The argument was most unfair to appellant,- and well calculated to prejudice his cause before the jury. While we would not have disturbed the verdict upon the evidence aside from this improper argument, we are not so clearly convinced of appellant’s guilt upon the undisputed facts as to be able to say that the verdict was not caused by the extraneous evidence and improper argument which the prosecuting attorney brought into the record. See Marshall v. State, 71 Ark. p. 415.
The court did not err in refusing appellant’s request for instruction numbered six, and in giving instead section 1844 of Kirby’s Digest. This statute makes it unnecessary, where it is alleged, as in this indictment, that gold, silver, and paper money was embezzled, to do more than prove the amount of money, in all taken. That proof was made in this case by showing that the bill of Mayo marked paid by appellant amounted to $10.50. From this and other proof the jury were warranted in concluding that appellant had received the sum of $10.50.
The court did not err in admitting evidence of other similar transactions by appellant before and after the alleged transaction in controversy, since it was admitted with the limitation that it could only be considered on the question of intent. I Wigmore on.Ev. § 329; Howard v. State, 72 Ark. 586" date_filed="1904-07-02" court="Ark." case_name="Howard v. State">72 Ark. 586. If appellant was guilty at all, the particular criminal act under consideration according to the proof was one of a series of similar acts, and these were admitted to prove system and show design. Howard v. State, 72 Ark. 586" date_filed="1904-07-02" court="Ark." case_name="Howard v. State">72 Ark. 586, supra; Johnson v. State, 75 Ark. 427" date_filed="1905-05-27" court="Ark." case_name="Johnson v. State">75 Ark. 427.
The judgment is reversed, and the cause is remanded for nevr trial.
Dissenting Opinion
(dissenting.) It is true that the prosecuting attorney referred to an unproved matter, the alleged flight of Wyman, but it was not a matter going to the real issue of the case — the guilt or innocence of this defendant — and I regard it as trivial, not prejudicing any substantial right of defendant; and the court’s instruction removed any possible prejudice by confining the jury’s attention to the real issue, which, according to previous decisions, is sufficient in such cases.