Yelvington v. State, 169 Ark. 359 (1925)

Oct. 5, 1925 · Arkansas Supreme Court
169 Ark. 359

Yelvington v. State.

Opinion delivered October 5, 1925.

*360Bogle S Sharp, -for appellant.

H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.

'McCulloch, C. J.

Appellant was indicted for the crimes of grand larceny and receiving stolen property, and the trial jury convicted him of grand larceny, but acquitted him -of the -crime of receiving stolen property. An appeal has 'been duly prosecuted, and the first ground urgéd for reversal is -that the testimony is not -sufficient to -sustain the verdict.

-The charge against appellant is that he stole two mules, the property of C. P. Trice. Mr. Trice i-s a farmer in Monroe County, and it has -been his -custom for many years to turn his mules and other stock into the White River bottom after the -crop had been gathered. He did that in the autumn or winter of 1921 and placed -seventeen) mules in the bottom range, and they were to remain there until -he Was ready to begin his crop in 1925. He hired -a man to look -after the mules occasionally and salt them. Askew, the man employed by Trice to look after thenuules, salted them on a .certain Thursday in -the month -of February, 1925, and on the following Wednesday, Askew and Walter Trice rode through -the- bottom looking for the mules, and five of them were missing, there being two bay mules among the missing, which were afterwards found in appellant’s possession, at his home in Phillips C-ounty, about twenty or twenty-five miles distance from the range from which the mules were lost. Appellant claims -that he bought the mtule-s from a ban-d of traveling horse-traders who passed through the country, and that he had been keeping the mules openly in his horse-l-ot adjoining the public .highway and working them in a' field along the highway. Two other wit*361nesses testified that, shortly after the time the mules were missed from the range, they saw; three men traveling along- the highway leading- out of the range and having seme mules in their possession. According to the testimony of one of the witnesses, the mules answered the description of those lost by Trice, and the same witness also identified appellant as being one of the men that he saw talcing the mules out of the range. This witness testified that when the men with the mules approached he heard one of them give directions to the other two to ‘ 'turn into the woods, ’ ’ and that immediately the men with the mules turned off the highway into the woods. The identification by the witness of appellant • as one of the men with the mules wias a little indefinite, and the witness refused to say positively and unequivocally that appellant was one of the men, but he stated in his testimony that according to his opinion and belief appellant was one of the men. While the testimony of this ■witness was not positive and convincing, the question Of weight was one for the jury. The statement of this witness was sufficient to constitute an identification of appellant, and his testimony, if given full credit and weight, was sufficient to constitute an identification of appellant as being one of the men having the mules.

It has been decided by this court that unexplained possession of recently stolen property is a fact from Which an inference of guilt may' be drawn‘and con stitutes legally sufficient evidence of guilt, though it is improper for the trial court to give an instruction as to its sufficiency. Duckworth v. State, 83 Ark. 192; Long v. State, 140 Ark. 413; Pearrow v. State, 146 Ark. 182.

Where recently stolen property is found in the possession of the accused, the reasonableness of his explanation is a question for the jury to decide in determining What inference is to be drawn. In the present case we have the fact that recently stolen property was found to be in appellant’s possession, and the reasonableness of his explanation was, as before stated, a question for the jury. He testified that he bought the mules from the horse-*362traders and paid thirty dollars apiece for them. The jury might have concluded that his explanation was unreasonable. In addition to that, there was one witness who testified that he saw appellant and two other men driving along the road with mules in their possession;, and there was testimony that the tracks of the mules went in the direction of appellant’s house, where they were finally found. Ou)r conclusion, therefore, is that the evidence was sufficient to sustain the verdict.

Error of the court is assigned in admitting the testimony of the theft of other property and the finding of the same in appellant’s possession. The State proved ■by witness T. T. Malone that he went to appellant’s house at the latter’s request and saw mules there which were afterwards identified as the Tlrice mules which had 'been, stolen from the range, and that he also saw some sets of harness which were afterwards shown by another witness, P. G. Nolen, to have been stolen from him. Appellant objected to this testimony both of Malone and Nolen. We are of the opinion that it was error to admit the testimony of other thefts and appellant’s possession of the other property which had been stolen. This court has adopted a very liberal rule in declaring exceptions to the general rule against proof of other crimes. We have said that proof of other crimes of a similar nature, shown to have been committed about the same time, may be admitted as disclosing the good faith or criminal intent of the accused, or to prove a scheme or plan or system of 'committing crime, or to show a connection between that particular crime and the one under investigation. Howard v. State, 72 Ark. 586; Setzer v. State, 110 Ark. 226; Davis v. State, 117 Ark. 296; Murphy v. State, 130 Ark. 353; Cain v. State, 149 Ark. 616; Johnson v. State, 152 Ark. 218; Nichols v. State, 153 Ark. 467. The proof in the present case does not, however, fall within the exception. The proof of the theft of the harness had no connection with the alleged theft of the mules. It occurred at a different time and place, and uq,der those circumstances it had no tendency to establish a plan or *363•scheme which included the theflt of the stock, and formed no connection with that incident. The court admitted the testimony on the theory that it tended .to establish the good or bad faith of the accused, but we do-not think that it was proper for that purpose. The assignment falls squarely within the decision of this court iii the recent case of Mays v. State, 163 Ark. 232. In that case the defendant w!as convicted of the offense of receiving stolen property, -and the 'State proved the theft of ia valise containing woman’s apparel, that two of the dresses were ■ found in the possession of appellant, and that other stolen property had also been found in his possession. We held that the testimony was incompetent, and the same reasoning calls for the exclusion in the present case of testimony relating to other thefts. The fact that the stolen harness was found in appellant’s'possession at ¡the same time that the mules were found there does not relieve the testimony of the objection that it relates to another crime. Oiur conclusion, therefore, is that the court erred in admitting this testimony, land, as we have no means of knowing its effect upon the mind of the trial jury, the error must be treated as prejudicial. .

The judgment is therefore reversed, and the cause remanded for a new trial.