276 DRKIMMONP v. STATE. [191 'DRUMMOND V. STATE. • (Irbil. 3947 ' Opinion .delivered September 23,.1935„ 1.- . 'LARCENY=§UFFthIENCY OF 'Fivmuiwn.:—In 'a prosecution' for Mk-. ceny of ,hogd,lif the- testimony , supported oa finding that-defendant • 'knew ,that: the . hogs,. 'did • not belong to him, it • is, unimportant _whether,defenddnt knew who the true owner was... . . . :qtniiNAL LAvv—ExcipusIoN . OF . EVIDENCE.—In , aprosedution for. lareenk of hogs, the cOurt''s refusal to admit tesir n m 'Y o ' of a wi t ' -ness thdt defendant before'he tv'ad arrested asked the 'Witness.to '• go and . see if the : hogs were his . held not error where' the offer of testimony did not apPrise the- court that defendant Was seeking to. prove his good, faith,by .proying ; that he had, made inquiry over • the county whether anybody had lost any hogs. aRINIINAL LAWINSTRUCI ; IONS CONSIDERED AS an action for larcenY of . 'hogS, 'general instruction' 'is ' not open ' to •' objection that -it 'left out of ! aecount the.question of the defend-• ant's good faith,: where other instructions dealt with that . phase of. the Oise. . Appeal froth. Crawfora Circuit Court ; 'J. 0; . Kincait-non, Judge ; affirmed. Jokrt kaye.§ -and . Rains. & Pains, for appellant. Carl E. Bailey, Attorney. General, and Guy E. Hams, Assistant, for appellee. . SMITH, J. Appellant, Joe Drummond, was tried under , an indictment which charged that he and Dail and Ira Drummond had stolen two bogs, the property.of
.kRli.] DRUMMOND V. ;STATE. : 977 Francis. He was convicted,. and they were acquitted. :For. the reversal of the judgment sentencing appellant to • a term in the penitentiary, it is insisted (1) that the, testimony is insufficient to, sustain the 'conviction; (2), that the court erred in , the exclusion . of certain testimony,. and (3) in giving an instruction numbered . 5.. . The testirnony eStablishes . without,question . that appellant toOk poSsession- Of the:two hogs, and .it appears to be admitted that , they . Were the . property of .FranciS. The defense ' interposed was that , aPpellant ;had taken. poSs . ession of the . 1pEgs -tinder the . honesthelie , . f, that they were his. TeStiMonY was. offered in apPellant's , behalf thai the hogs' in , question weie about . the np , of , a litter, of pigs oWned . hjr . apPellant , whiCh had . strayed :aWay from the home ., Where ; aPPellant, had fOrinerly liVed, hut had later returned • to' this: place , after appellant had re-. moved to another home. .He' found , the pigs . , at .his fOr- mer hoine, and drove . them-to his . present home, where, in conjunction with his brothers, who . are eodefendants, killed one of. the . hogs and . salted it . down,..and . pUt the other in a little . outhouSe ,... , • ; • The owner's teStimony , as • to• th6, time and , manner in , which the hogs ° were taken up, ,aiia appellant's con-. duct when one of the hogs was fOund . in his .possession,. support the finding that appellant knew the hogs , did n9t. belong to him. If this was true—and the , teStirnony is sufficient to . support. , that finding—if is uniniportant whether appellant . knew Who'the true . owner WaS; We conchide the , refore' that the feAimony is • sntficient to SU tain s g- the conviction. . . Ed larnard, ' ..Whd WaS called aS • Witness'fOr afiper lant, waS asked this qtestion "Did ' , you- ever , have a converSation witk JOe" ' . (app'elWrit) "before he Was* . at: reSted about' sOme Ifoks ' ..111)on •' objeOtion . being'.Made to the queStiOn by the .pre s seetiting' . ktorney apf)ellant'S counsel 'said : : "I . want to 'shoWthat Joe Caine and asked. him to go and look and if . theY . Were" ' The 'prosej cuting attorney remarked '''"JOe 'knew ' they • Were not his. The trial judge . then ruled : ' "That Would be :self-serving. There is no contention . about this man?s hOgsiP Therelipon counsel for appellant stated : " The • defend-.
278 DRUMMOND V. STATE. [191 ant offers to show by the witness that this defendant made inquiry -around over the country to see if anybody had lost any hogs and asked if he would come and look at the hogs—these particular hogs in the indictment." It is unfortunate that appellant's counsel was not required to make his 'offer of testimony more definite. The observation of the judge, above quoted, Makes it apparent that the judge was under the impression that counsel was proposing to prove a conversation between the accused and the witness concerning inquiries which appellant had made around over the country. If appellant's counsel was attempting to show—as the trial judge evidently thought he was—that appellant had told witness that he had made inquiry around over the country, the testimony was self-serving, and was inadmissible for that reason. The offer to make proOf was not made in a manner to apprise the court that it was proposed to show that the witneSs had personal knowledge of the fact that appellant had made inquiry among the neighbors as to the loss of their hogs. Such testimony would have tended to show good faith on appellant's part ; but testimony that he had so told the witness" would be merely a self-serving statement. 1 Wharton's Criminal Evidence, § 505 ; Butler v. - State, 34 Ark. 480 ; Lindsey v. State, 176 Ark. 398, 3 S. W. (2d) 37 ; Patterson v. State, 179 Ark. 309, 15 S. W. (2d) 389. Instruction nuinbered 5, to which objection is made, reads as follows : "If the defendants—any one of the defendants—took, stole or carried away the property without the assistance of the other, then only one would be guilty. If they all assisted in taking of the hogs, then all would be guilty. If they took these hogs, honestly believing they were their awn property, and placed in their own shop and pen or barn, honestly believing to be their own property, then they are not. guilty of stealing the other man's property, even though you find it was the property Of the other man." No specific objection was made to the instruction at the time it was given, and it is now argued that it leaves out of account the question of appellant's good faith
ARK.] 279 when he tOok • up the hogs. - The instruction 'does not deal with that phase of the case primarily. - Other instructions did, and correctly so. It has been staled that appellant and two other persons were tried jointly, and the instruction declared the law as to the conditions- under which persons participating hi the asportation • would be guilty. However, the instruction does state that, "if they took these hogs, honestly believing they were their own property, and placed in 'their own shop and pen or barn, honestly believing to be their own property; then they are not guilty of. stealing the other man's property; even though you find it was the property of the other man." There was no error in giving the instruction. • Upon a consideration of the whole case, we •find no error, and the judgment must therefore be •affirmed, and it is so ordered: • - •
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.