Fletcher v. State ( 1939 )

Appellant was charged by information with the crime of grand larceny for the stealing of "one yellow jersey heifer, past two years old, and roan calf, with white spots in flank, same being the property of F. B. Hoover." He was tried and found guilty on January 16, 1939, his punishment being fixed at one year in the penitentiary, and judgment was accordingly entered. On the same day he filed his motion for a new trial which was overruled, and he prayed and was granted an appeal to this court, sixty days being given to file a bill of exceptions. The transcript was filed in this court on March 15, 1939, and appellant's brief was filed twelve days later, on March 27th.

On April 25, during the January term of the Arkansas circuit court, southern district, but at an adjourned day thereof the court made an order which recited the facts above stated and continued as follows: "Now on this 25th day of April, 1939, being an adjourned day of the regular January Term, 1939, the court on its own motion, upon investigation finds, that the proof on the part of the State of Arkansas, fails to sustain the charges of the information filed herein; and fails to sustain the verdict and judgment rendered herein on the 15th day of January, 1939. Now, therefore, the verdict and judgment of conviction of the said defendant, Hollis. Fletcher, rendered herein on the 16th day of January 1939, is hereby vacated and set aside; new trial granted and ordered, and this cause set for trial on the second day of the next regular term of this court."

The record has been amended by stipulation to include said order. The question naturally arises as to the validity of said order although not raised by the briefs of the parties. It is a novel situation, but not entirely new to this jurisdiction. The question is: Did the court have jurisdiction to make the order at the same term, but after the appeal had been perfected in this court? We feel compelled to answer the question in the negative, because of prior decisions of this court which were grounded on good authority and sound reasoning. In Freeman v. State, 158 Ark. 262, 249 S.W. 582, 250 S.W. 522, a case in point, Freeman was convicted of grand larceny and sentenced to a year in the penitentiary on October 20, 1922, in the Sebastian circuit court. He appealed promptly to this court and the judgment was affirmed on January 27, 1923. Thereafter, on February 13, 1923, he moved the trial court to modify the judgment so as to sentence him to the reform school alleging that he was a minor 16 years of age at the time of trial. The court overruled the motion and he again appealed to this court. The case was again affirmed. On petition for re-hearing, he suggested a diminution of the original record and asked for certiorari to the clerk of the trial court directing him to certify to this court a transcript of the record showing the date of adjournment of the term of court at which he was convicted and sentenced, the object no doubt being to show that the term of the trial court had not adjourned when his original appeal was taken. His motion for certiorari was denied. The court said: "The request for the writ is denied because the perfection of the record as to the date of the adjournment of term of court could not benefit appellant. It is true we affirmed the judgment of the circuit court upon the ground that the sentence could not be modified after the adjournment of court. That was not the only ground which called for an affirmance. An appeal was prosecuted to the Supreme Court from the original judgment of conviction and sentence, which was affirmed. The appeal lifted the cause out of the circuit court; and, as the judgment was affirmed, it was beyond the power of that court to afterwards modify or change it in any respect. After the appeal was taken and the transcript lodged in this court, the only jurisdiction remaining in the circuit court was to correct the judgment by nunc pro tunc order to make it speak the truth, or upon reversal and remand of the cause to follow the directions of this court. The motion for the writ and for rehearing is overruled."

Another case in point is Emerson v. Boyles, 170 Ark. 621,280 S.W. 1005, 44 A.L.R. 1193. Boyles plead guilty to manufacturing mash and he was sentenced to a year in the penitentiary on July 22, 1925, a regular day of the July term of the Perry circuit court. He shortly thereafter began serving his sentence. On December 17, 1925, an adjourned day of the same term, the trial court made this order: "On this day comes on for hearing this cause, and the court finds that the judgment entered in the cause herein should not have been entered, and it is accordingly ordered and adjudged that the judgment rendered in the above entitled cause, at the present term of this court, be and the same is hereby set aside and held for naught, and the commitment theretofore issued is recalled. The keeper of the Arkansas State Penitentiary is hereby ordered to release the said defendant, J. M. Boyles. The court deeming it best for the defendant, and not harmful to society, the case is hereby continued on condition, first, that the defendant pay the cost of this court within thirty (30) days from date, and second, that his behavior shall hereafter be good, pending which time he shall be released on his own recognizance. It is further ordered that a copy of this order be served on the keeper of the State Penitentiary." The penitentiary officials refused to obey this order and to release Boyles, and on December 22, 1925, he brought habeas corpus against them to be released. The Pulaski circuit court granted the writ and the Board appealed. This court held that where a defendant is convicted, enters the penitentiary in execution of the judgment, and serves a part of his sentence, the trial court has no jurisdiction at the same term of court to set aside the sentence and direct the case to be continued, as it would be in effect putting him twice in jeopardy for the same offense. In doing so the court used this language: "This holding is a recognition of the rule, well established, that, where the defendant has entered upon the execution of a valid sentence, the court loses jurisdiction over the case.

"Reasoning by analogy, it may be said that the case is not unlike one where an appeal is taken to the Supreme Court at the same term during which the judgment is rendered in the lower court.

"In Robinson v. Arkansas Loan Trust Co.,72 Ark. 475, 81 S.W. 609, it was held that, when an appeal is granted and an authenticated copy of the record is filed in this court, the suit is thereby removed to the Supreme Court. When the transcript is filed, the jurisdiction of the Supreme Court is complete, and the lower court loses jurisdiction, except to correct its judgment to make it speak the truth, in aid of the jurisdiction of the appellate court. The same rule has been held applicable to criminal cases. Freeman v. State, 158 Ark. 262, 249 S.W. 582,250 S.W. 522.

"Thus it will be seen that, while the general power of the court over its judgments, both in civil and criminal cases, during the term in which they are first rendered is undoubted, still there are well known exceptions to the general rule. If the trial court loses jurisdiction over the case when the statutory requirements for an appeal are complied with, and a transcript of the record is filed with the clerk of this court, it would seem that for a similar reason the trial court would lose jurisdiction of the case when it had issued its commitment of the defendant to the State Penitentiary, and the defendant had been transported there, and was serving his sentence."

So, in this State, there are two well known exceptions to the rule that the court has general power over its judgments during the term in which they are first rendered. One is that when an appeal has been perfected in this court and the other is that the defendant has served a portion of his sentence. In either case the trial court is without jurisdiction to modify its judgment, "except to correct its judgment to make it speak the truth in aid of the jurisdiction of the appellate court." There can be no such thing as two courts having jurisdiction of the same case, involving the same subject-matter, at the same time.

We, therefore, hold that the order of April 25, 1939, was ineffective because the case was then pending on appeal in this court.

Coming now to the merits of the appeal, two questions are raised. The first is that there is a variance between the information and the proof. The second is the sufficiency of the evidence to sustain the verdict.

Appellant was charged with stealing two animals — a "yellow jersey heifer, past two years-old" and a "roan calf, with white spots in flank." It appears to us that there can be no question as to variance between the information and proof as regards the calf, because appellant was found with it in his possession and delivered it to Mr. Hoover, the owner, when he came and identified it as his calf. The cow which was the mother of this calf was found dead, about three quarters of a mile from appellant's house. The skin on the head of the dead cow had been removed and the ears were cut off. She had been dead about three days. Mr. Hoover identified her by her horns. Another witness, Hal Collier, identified the cow and calf as the property of Hoover. Still another witness, Walter Perry, testified that he traded two dogs to appellant for the cow and calf in question, a jersey cow and calf; that appellant came and got the dog's and the witness went after the cattle, but was told by appellant to come back next day and he would have the cow up there; that he went back in a day or so and appellant told him the cow got run into by a car and was killed: that he saw the cow and calf before the cow was killed and saw the calf after it was taken from appellant, but did not see the dead cow; and that the calf was the same as the one he had traded with appellant for. He described the cow as "a little jersey cow — weighing about 450 pounds. Just the average color of a jersey cow, and the calf appeared to be about two months old." Appellant showed him the cow and calf and offered to trade them for his two dogs. It was a bull calf.

We cannot agree with appellant that there was a fatal variance as to the cow. It is argued that, because the charge was the stealing of a yellow jersey heifer, past two years old, and that the witnesses referred to a jersey cow, this constitutes a variance; that a heifer is not a cow. Webster defines the word "heifer" as "a young cow; a cow that has not had a calf." The animal in this case was a young cow with her first calf, and while the use of the word "heifer" in the information was not exactly accurate, yet the additional words, "past two years old" shows that she was a mature animal which properly would be called a cow. When all the language in the information describing the animal is considered together, we are of the opinion that the testimony referring to her as a "jersey cow weighing about 450 pounds" and "a little jersey cow weighing about 450 pounds just the average color of a jersey cow" does not constitute a substantial variance. In State v. Haller, 119 Ark. 503,177 S.W. 1138, the indictment charged Haller with stealing "one cow (bull)" etc. In holding there was no variance between the indictment and the proof which showed that a bull was the subject of the larceny, this court said: "The liberality of our code of criminal practice is illustrated in the decision of this court in State v. Gooch, 60 Ark. 218,29 S.W. 640, and we think according to the liberal rule laid down in that case the indictment was sufficiently clear to indicate an animal of that kind of the male species, and that the proof in this case conformed to the allegations of the indictment."

We think the evidence sufficient to support a conviction. He offered a plausible explanation of his possession of the calf, but the jury refused to accept it. Possession of property recently stolen is sufficient to support a conviction for the larceny thereof, if unexplained to the satisfaction of the jury. Morris v. State, 197 Ark. 778,126 S.W.2d 93. Moreover, the testimony of Walter Perry that appellant traded him a jersey cow and calf for two dogs, and that the calf is the one in controversy, shows that appellant was exercising acts of ownership over both animals, which the proof shows did not belong to him.

We find no error, so the judgment is affirmed.

SMITH and HOLT, JJ., dissent.