1038 HARRELL V STATE. [169 HARRELL V. STATE. Opinion delivered December 7, 1925. 1. LARCENY—SUFFICIENCY OF EVIDENCE.—In a prosecution for grand larceny, evidence held sufficient to sustain a conviction. 2. LARCENY—ALLEGATION AND PROOF OF OWNERSHIP.—In a prosecution, for grand larceny, where general and special ownership of the property was alleged to be in different persons, proof of the special ownership was sufficient. 3. LARcENv—INDICTMENT—FELONIous INTENT.—An indictment for grand larceny, charging that defendant did ' unlawfully and
ARK.) HARRELL V. ,STATE. 1039 feloniously steal, take and carry away, held to charge felonious intent. CRIMINAL LAW—HEARSAY EVIDENCE—HARMLESS ERROR.—In a prosecution for grand larceny, statement made by accused's father to third person, in absence of defendant, while hearsay, was harmless where defendant in his testimony made the same statement. Appeal from Faulkner 'Circuit Court; George W. Clark, Judge; affirmed. W. D. Swaim, Lewis Rhoton and Geo. F. Hartje, for appellant. H. W. Applegate, Attorney General, and : Darden Moose, Assistant, for appellee. WOOD, J. Earl Harrell was indicted in one indictment for the offenses of grand larceny and receiving stolen property. The first count charged the offense of grand larceny, and the second count the offense of receiving stolen property knowing the same to have been recently stolen. It was charged in the first count that Earl Harrell in- the county of Faulkner, State of Arkan-sas, on the 15th day of April, A. D. 1925, 150 bushels of cotton seed of the value of $100, 250 bushels of corn, of the value of $400, 180 bales of hay of the value of $75, a total value of $475, the personal property of B. D. Brockington, being then and there in the custody and possession land control . of J. I. Summers, the sheriff of Faulkner 'County, Arkansas, did then and there unlaw-. fully and feloniously steal, take 'and carry away, against the peace and dignity of the State of Arkansas." John Mitchell testified -that he lived in Faulkner County ; that he had in his eustody at the request of the sheriff of the county a certain crop consisting of 200 bushels of corn, 3,000 pounds of cotton seed and 180 bales of hay. The corn was worth from $1.35 to $1.50 per bushel. He placed the corn and the cotton seed in a crib, and the hay in a separate barn. He nailed a board across the door of the crib. C. S. Harrell, father of Earl, lived about thirty steps.from the crib at the time the crib was destroyed by fire. Earl Harrell lived something like
1040 HARRELL ' V. STATE. , [169 two . miles from hiS father. Witness lived about 175 yards from C. S. Harrell. On a Sunday night in April, 1925, witness was aroused from sleep by some one , screaming down at C: ;S. Harrell's. He went down 'there, and foUnd that the barn 'containing the 'corn and cotton seed was on fire. The roof had not yet fallen in. In witness' opinion froth his observation of the pile of 'corn when the barn fell in there were.not more than -20 or . 25 bushels of' obrn in the barn when it burned. Witness described to the jury the situation of the barn, andikated that he had nailed a plank across the Crib cloth .- to make the same seCure. When witness arrived thete, the plank had been removed from the crib do:or. 'The ;fire occurred • about . twelve . o 'clock , at . night. . Witness. .observed . the tracks of .a wagon in the lot, and traced these from, under a wagon shed In front of the crib door and through the lot gate to the field gate.. The 'barn . . was •on the .pla'oe occupied by . C.. S. Harrell about which there :was ;a controversy between him, and. Drockington., . In about ,five minutes after witness arrived . Sam Ark !came, and witness met Mrs. Harrell running toward the fire with a bucket. •No one else was present at the . fire but C. , S.,Har-tell, his wife and Sam, Ark. • , . • . Thd witness was asked . the f011owing: "'Q. Did 'you hear a ;conversation 'at the fire hetween Sam Ark and C. S. Harrell as to the Whereabouts 61 the . tedin? A. 'Yes, sir. Q. .Tell the jury What Mr. Ark said . to Mt. Hattell and the response of Mr. Harrell tO Atk's question." The appellant objected to the qubstioii. The emitt overruled the objection. The appellant g aved: his exceptiOns The witness answered: "A. Yes, sir...Q. Ymi recall the conversation between 'Mx . Harrell and Mr. Ark? . sir, with reference to the -Where;abouts' of the 'wagon and team . . Well,. Mr.. Ark asked him whete 'his team was, when he got there: Q. What did . Mr. Harrell . say? 'A. 'He said one of his work mules was out in the field, and the other was out in . the paSture.. Mr. Ark also asked . where the wagon was, and Harrell said, 'Well,. just
' ARk.] HARRELL V..STATE. 10.41 to tell the truth about it; my • -vagoli and Warn is doWn' at Mr. :Dawson's.';" Mitchell further teStified that 'C. S Harrell 'had Only one wagOn, and it had tWo inch tires: • :' The Corn iii the Crib was ear Corn in th . e . Shuck. ' s '" • • ' Sam Ark teStified and .dorrolora‘ted the ' testirdony.of Mitchell as to the apPearanee,Of the wagon tracks and also as ' •to the converSation : betWeen himself and Harrell.' •• . •,.: ,•,:t . „ Neal Webb testified that he was a : deputY :sheriff of Faulkner COuntY, and 'was , : , Called • to . , C.. S.: Harrell's residence on the morning of April 13th. ' When' he arrived; he didn't see any trackS' in' the ldt Sóniething hdd . been ' 'dragged Over- the traCks -adresS 'the let before witness-got there;and also oVerthe : traCkS t6-the pasture gate: At the ldt gate 'Witness pieked up' the'' -track. waS a mule track on the left, : and : witness -didn't•-notice any other tratk.' 'The WagOn traek lOoked' like a tdler-ably new- wheel not quite" stwd inChes :broad to a hew threcquarter Wagon.' Witness folloWed the track all the way foi . ' two Miles through : the nilid; 'and ' they: Were' leading to the houSe. WitneSs beCathe cenftSed 'with A, Similar track going in , the öppOSite direCtiOn. The Wagon track had mashed the grass down, and:Witness could nOt • tell Tor sure that it -Was the : wagon'track lie staiied 'with,;-but 'now 'and then he would , see' it Plain • endugh to 'identifY- it. • 'Witness: f ollowed the lima' for : a mile arid three-quarter s thrOugh ..tpe .field, and • StrUck: the 'gap . Of jiate where th6y cathe Out; forbid the;trackS ll the IvaythCre, and . witness 'discovered: OA the smite traek that went'Out e.ame The saine outfit Went bdth'ways-inTh the'field. lu traciav the track witness and Sheriff &limners picked up the:mble track a quarter of a Mile from the : defendant's 'henie" - — the same traCk they had. ' picked . -Up'dOwn i at-the lot gate. Ttictrark led' to Earl Harrell's louse.' 'Wthei-e-the tracks crossed • the braneh there' Were sthne shucks that !bad fallen out that were not • wet •"throUgh:•'' When' they got to the branch' they discovered the tra.cksiand , the :shucks,
1042 HARRELL V. STATE. [169 and when they got to the house the wagon had turned into the lot, and had come back. They , saw that it was the samb wagon, and the same mule track. They also discovered about ten or fifteen 'bushels of corn in the crib, that looked as if it had just been thrown in. , It was near the door of the crib. Witness didn't know whether there was any more torn in there or not. Witness examined the ruins of the fire which was still smoldering. Most everything had burned up. There were fifteen or twenty-five (bushels of corn in the pile. Witness, in tracing the wagon tracks, found shucks within a quarter of where the barn burned. J..I. Summers testified that he was sheriff' of Faulk-ner County, and as such process was placed in his hands for an attachment on the property described in the indictment, Which he served and placed the property in the custody of John Mitchell, who was acting as witness' agent. Before the barn was burned on Sunday night, witness was notified that the property had been advertised for sale under an order of the court. Witness corroborated the testimony of Webb as .to what he discovered when witness went to the place where the barn burned, and in tracing the wagon tracks. Witness stated that, in tracing the wagon tracks, when they reached the house of defendant, they found some corn in the rear end of his crib. Defendant told witness that he got that corn from Dawson, but later stated that he got it from his (brother. The corn in the crib didn't look like Daw-son's corn. Witness didn't know the kind of corn that he had ' attached of the property of Brockington. The ear of corn that witness picked up at C. S. Elarrell's where the fire occurred was a nubbin, and the corn in the defendant's crib was very light corn. Witness saw the corn that Dawson had in the ' crib, and it didn't correspond with the corn witness found in the front part of defendant's crib. It was entirel y different corn. The corn that witness attached and placed in Mitchell's possession was 'attached as the property of Brockington.
ARK.] HARRELL V. ,STATE. 1043 Witness also stated that he had a conversation with C. S. Harrell, the father of defendant, when he went down to the place where the barn was burned, and C. S. Harrell told witness that the week before about five or six wagons came in, and hauled away that many loads of corn. Witness didn't give any authority to haul the corn away. . Witness Dawson on behalf of the defendant testified that he knew the defendant. A few days before the fire witness sold defendant eleven bushels of . sorry new-ground corn: .A wagon going from . witness' house to defendant's ! house would travel over the same road on which the tracks and shucks are alleged to have been found. Witness was plowing with C. S. Harrell's mules on Saturday preceding the Sunday night of the fire. Sunday morning Harrell's wagon was in the corner of the field next to witness' field. Witness didn't know where •Harrell's team was Sunday night, but witness plowed with the team on Monday morning.. Witness didn't tell Summers that he had not sold corn to any one. Witness told Webb that he had sold corn to Earl Harrell, and Summers was present at the time. Other witnesses testified on behalf of the appellant, and the appellant himself testified. Their testimony tended to prove that the appellant was not guilty of the crime charged, and of which he was convicted. The,juyy returned a verdict finding appellant guilty of grand larceny, and fixing his punishment at one year in the State Penitentiary. Judgment of sentence was entered in accordance with the verdict, from which is this appeal. 1. Counsel for appellant contend that there is no evidence to sustain the verdict. It could serve no useful purpose to discuss the testimony. It is set forth above and speaks for itself. 'Suffice it to say we are convinced, that it was an issue for the jury under the evidence to determine whether or not ! appellant was guilty of grand larceny as charged in the indictment. 2.. The appellant conteAs that, inasmuch as it was charged in the indictment that the property alleged to
1044 HARRELL V. STATE. [169 haveibeen stolen was the property of B. D. BrockingtoM it was necessary: to prove that . allegation. Stich is •the general rule: Fletcher v. State,-97 Ark.. -I; Russell v. State, 97 Ark. 92 ;' Wells v.--State, 102 Ark. 627. But• in the tdase 'at bar, while it l wa s 'alleged in the :indictment 'that the perSonal . proPerty was • that of: B: D. 'Brockington, there was:the further, special allegation: that the property at:the.time it :was alleged to have been, stolen wag "in . the custody and poSsession and contrOl 6f J. I. Summers, the Sheriff,.of Faulkner County, Arkansas." This allegation' • of special • ownership, :custody , , and . control made it: 'unnecessary 'to 'prove the allegation of 'general ownership.. . For it Was WhollY immaterial who owned the property if, at . the time 'the same was stolen,' it was in the 'possessiOn,: and under the control of some-other person,,,and.the possession.and: control of suCh person was alleged and proVed. .• Such proof . of t special oWnership and . 6f the felonious taking, stealing , and' carrying away from, the . custOdy of Such 'special owner , woUld constitute': larceny. • •, • ' It is iniPOSSible'fOr the aPpellant th have heen Misled by the allegatiOn in -the' indictinent á to the ownership, and . the-Proof adduced by .. the : State . to establish such' bWnership: While . - general . and - special ownership Was.alleged, prOOf was Made of sPecial ownership', •and'Of the control and po. ssession 'of thepropertY at the tinie the Sanie is alleged to have been, stolen: This meets every' requireinent of the' law. --In' . .Porter . v. 'State, 128 Ark. 519-522, we 'announced the principle whieh control§ here: as follows': : "In: other words, an indictment -must allege the name§ of the owners to enable the court to pronounce -judgment, on conviction, -according to the rights' of the case, and- to prevent prejudice to the substantial rights of the:defendant. If he is to be conviCted, he has , the right to . haVe 'named in 'his indictment all persons who are supposed to have been aggrieved by this 'act, so that he may prepare-fOr his. dyf ense, and plead the acquittal .or conviction successfully, should he be again indicted for
ARK.] HARRELL. v. STATE. 1045 the; saMe offense, but when this has been done, and -the indictment is otherwise sufficient, he is not prejudiced by. the :insertion of the name of a person . as an- owner- who, in fact,, has no interest in the property 'alleged tollave been stolen:" Here it was alleged that the property was. that -of : B. D. :Brockington, and that the special custody. and control was in -Summers, the sheriff; There• was proof. tending to show that Brockington had the, prOcess of.. attachment issued under . which the ;sheriff obtained: special possession and control of the property.: • The testimony was sufficient to meet the requirements of the. law as to, the proofs-of ownership. . 3. The appellant •next contends that the .tdstitheny upon which -he was Convicted was wholly eircumStantial, and hot sufficientto sustain the- verdict. Even though the testimony was circumstantial, as -already- stated; it was 'sufficient to sustain the verdict. 4. 'Apipellant's contention that the indictment wholly fails to allege a felonious intent is not well' taken; for the indictnient expressly charges that the defendant "did then and there unlawfully and feloniously steal, take and carry away, etc." Thus felonious intent is expressly, alleged." * Parker. v. State, 130 Ark. 234. 5. The last contentiOn of 'appellant is that the court erred in peiniitting the statements by' the' father of the defendant . to Sam Ark and John Mitchell, :in the absence ofthe defendant, to go before the -jury. These witnesses, as set forth aboVe, testified that when they ,questioned the father of the defendant on-the night of the . fire, as tO the whereabouts -6f his wagon and team he replied, " To tell the truth, they, are down at Dawson's." This' testimony was purely heresay and highly prejudicial to the ,appellant, and the court erred in admitting the same, which error, unless obviated or cured, would entitle. the *appellant to a reversal of the' jndgment. Maore State;.151 Ark. 515. But we find that the appellant, in his cross-examination,* . was asked the . following question : :".`:Where were your father's wagon and team when you were at his
house that evening," and he answered, "He said his wagon was over next to Mr. Dawson's field." This answer of appellant in response to the question propounded was wholly voluntary on his part. It .was substantially the same as the testimony of Sam Ark and John Mitchell as to what C. S. Harrell had said when asked concerning the whereabouts of his wagon and team on the night of the fire. Since the appellant himself volunteered the same information contained in the testimony objected to, he is certainly not prejudiced . by such testimony. In Clayton v. State, 159 -Ark. 592, speaking of testimony to which objection was made, we said: "Still no prejudice resulted to the appellant from such testimony, 'because appellant himself took the witness stand, and testified to the same state of facts brought out by. such testimony." The record presents no reversible error, and the judgment is therefore 'affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.