Bennett v. State , 70 Ark. 43 ( 1901 )

Battle, J.,

(after stating the facts.) The evidence offered by the defendant and rejected by the court was inadmissible. He offered to prove that he said the horse stolen was an estray, and that he refused to sell him. An estray is an animal running at large, the owner being unknown. The evidence offered was not explanatory of any act of the defendant, but simply a denial of every act which needed explanation. At the time he offered the rejected evidence,he adduced or offered to produce evidence to prove that he was not in possession of the horse at the time he said the horse was an estray and refused to sell. The effect of the offer was an effort to prove his innocence by his own assertions.

Defendant objects to instruction numbered 6, because “there was no evidence of the way or manner in which owners of live stock in that community ‘exercised acts of ownership’ over their live stock, and under it the jury may have assumed that owners of live stock permitted it to run on the range, and the only exercise of ownership over the same was to claim it once a year, and that appellant, having claimed the horse, was therefore guilty of larceny.” In this the defendant is mistaken. The court told the jury if they found “from the evidence beyond a reasonable doubt that defendant took possession of said horse, or exercised such ownership over him as owners of live stock usually exercise over same, with intent to steal said horse, they will find defendant guilty.” This instruction is tautological; “took possession” and “exercised such ownership” being used to some extent in the same sense. The finding of the jury, under this instruction, must have been based upon the evidence. The only acts of ownership of the defendant shown by the evidence was the bridling and leading the horse from the range on which he ran to the home of the defendant, and there confining him in his lot, and riding him, and, while in such possession, claiming him as his property. Inasmuch as the jury were directed to find from the evidence, the instruction must be understood as having reference only to the acts of ownership shown by the evidence. Then, again, the court instructed the jury that the ownership must be exercised with the intent to steal. No one can infer from a mere claim an intent to steal. No person seeking by that means alone to steal would be capable of committing larceny; and a man who would impute to a person capable of committing that crime an intent to steal, and find him guilty of larceny upon that evidence alone, would not be competent to serve as a juror.

According to the instructions of the court, in order to find the defendant guilty of larceny, it was necessary to find that the horse alleged to have been stolen was the property of Henry Sullins, and that the defendant took possession of him with the intent to steal. The defendant did not ask the court to instruct the jury that it was necessary to find anything in addition thereto in order to convict him of larceny. The instructions given substantially and in effect embraced all that is contained in the requests of the defendant. We see no reversible error in the instructions, when Tead as a whole, as they should have been.

Judgment affirmed.

Wood and Biddick, JJ., dissent.