424 BODNER V. STATE. [177 BODNER V. STATE. Opinion delivered May 28, 1928. 1. RECEIVING' STOLEN GOODS I NSTRUCT ION .—An instruction in a prosecution for 'receiving stolen property which authorized a conviction only in case of finding from the evidence that defendant unlawfully and feloniously received the stolen goods with intent 'to- deprive the true owner thereof held not erroneous,- since it required the jury to find every essential fact necessary to a conviction. • .• CRIMINAL • I t AW-7 INSTRUCTION—FAILURE TO OBJECT.—An instruction not objected to when given will not be considered on appeal. CRIMINAL LAW—INSTRUCTION GIVEN AT A PPELLAN T'S REQUEST.— The SuPieme Court will not cOnsider whether an instruction given apPellant'S request correctly declared the law. . CRIMINAL LAW—INSTRUCTIONS ALREADY GIVEN .—Refusal to give an instruction 'fully covered by other instructions given is not error. . CRIMINAL LAW—DUTY TO REQUEST INSTRUCTION.—In a prosecution for receiying stolen goods, failure to instruct as to the. effect of finding the value of the property to be less than $10 was not error, ' in the absence of a request for such an instruction. Appeal from ! Sebastian Circuit Court, Greenwood District; J.:Sam Wood,. Judge; affirmed. H. TV. Applegate, Attorney General, and Darden , Moose, Assistant, for appellee. HUMPHREYS, J. Appellant was indicted, tried and convicted in the circuit court of Sebastian' County, Green-wood District, for receiving— stolen property, and was adjudged to serve a term of one year in the State Penitentiary, a§- a punishinent therefor.
ARK.] BODNER V. STATE; 425 'Appellant first assigns as reversible error the insufL ficiency of the eVidence to support the verdict *and judgment. The evidence' introduced by the State showed that the store of L. T. Byers at Alma, Arkansas, Was burglarized the night before Thanksgiving; in 1926, and that clothing : to the Amount of $600 was taken; that three woolen dresses, a red sweater, a lumberjack and some other clothing, which was stolen out of the store at the tinie referred to, was at the hoMe and in the- poSsession Of appellant, a part of 'which Was being worn by hina; that the , articles found, as well : as other piopert3: 7, were brought to- the home of aPpellant nearly a: year 'before his 'arrest, in 'cotton sacks, and first' placed in a 'cottônz house, and at a later date brought into the houSe, Where' the tags were taken 'Off the clothing` and burned, and that for a time the clothing was hidden under the floor; that subsequently a part of the property was removed by Frank Thomas and_Joe Cook, who had brought same tO the house. Although appellant stoutly denied being present when the tags were removed and burned and the .clothing hidden under the . floor, yet the jury believed the other witnesses, and their testimony is' sufficient to support the Verdict and judgment. '' Appellant neit assikns as reversible error the giVing of instructions numbered 1, 2 and A. Instruction number 1 is a-s follOwS: E — "If you find from the evidence in thiS case, beyond a reasonable doubt, that 'the defendant, Bart Bodner, in the Greenwood 'District of Sebastian County, and within three years ne)it before -the 'filing'-of this indiet-ment, 'three woolen. dre'sses, one leather coat and one sweater, of more • than the value of $10, 'the property .of L. : T. Byers, lately before ihen unlaWfully and feloni-ously stolen, taken and carried away, did then and there unlawfully and felonidusly have' and receiVe; with the intent to deprive the true owner thereof, he, ' the -said Bart BOdrier, then iand there, well'knOwing that the said property had been so unlawfullY and felonionsly Stolen;
426 PODNER 1). -STATE; [177 taken and carried away,.you should , convict the defendant; otherwise you should acquit the defendant." , It will be observed that the instruction required the jury to find, beyond a reasonable doubt, every essential fact necessary to a conviction upon. a charge of receiving stolen property.before returning a verdict of guilty, and to acquit appellant unless the charge had been established by proof beyond a reasonable doubt. The law applicable to the facts was correctly declared by the instruction. . . It is unnecessary to set , out instruction number 2 and determine whether. it is , a correct declaration of the law applicable. to„ the facts, as , no objection was made thereto or ,exceptions saved, at the time it yiras given. It was too late to object and save an exception thereto after conviction., ,,';; , It is also :unnecessary to set , out instruction numb,er A and determine whether same- is a correct declaration of the , law applicable to thelacts,. as it was given at the request of appellant. . Appellant next assigns.as reversible error the refusal of the court to give his requested instruction number 2. An examination of,the instructions given reveals the fact that the requestedinstruction, in so far as same correctly declared the law, was fully covered:by instructions numbered 1 and 3 given , by. the court at .the ,request of appellant.. : . Appellant's fifth, sixth and seventh assignments of reversible error are as follows : , . (5) That the court erred in ;modifying instruction No. 4, requested by defendant. , (6) That the court erred in stating to.the jury that, at the request of defend, ant, he had given instruction _number 4, as modified, relating to the corroboration of : an accomplice, and that he was withdrawing said :instruction from their consideration. (7)1 :That ,the Court erred in substituting instruction No.- A for instruction Nb. 4, , as modified, previously given.". • : Appellant is mistaken as to what the record . discloses regarding his requested instruction No. 4,. relating to the
:ARK.] -427 r • I • necesaity Of COrrOboration . of theevidence of an accom-pike beforelhete Can be , A bonViction. " There ia nothing in-the r record'td shOw that the Celia modified "the instruction and gaVe iPA:s modified,' or that it' Was given and afterWards Withdrawn;or tht the' court substituted aPpellaht's • reqijested instructiOn . NO: :A. for his requested instruction No., 4 after 'Modifying same: What the record actually reflebts is ' , that the conft refuaed to give .appeliant's 'requested instructien No'. 4 hecause he gave hia requeste. d instruction No. A;whith was a complete, full hnd correct' instruction rega'rdirig *the necessity 'for cor-roboratiOni of the evidence Of : an 'accbniplice before there can be' a conviction upon bis testimony. The court is not • reqnired to multiply 'instructions uPon' the 'same subject. Appellant's last assignment of reversibleetrcit is that the court erred in refuaing. to instruct as to the effect of finding 'of the- vahie . of . the • : property. receiVed • 'by appellant, if any, being under :the sum of $10. Appellant did not request an instrUction upon that point', 'and is in no position to complain because one , was. not given. It •was, appellant's. duty to have :asked a correct instruction upon the question. Hays v. State,:12 . 9 : Ark.. 324, 196. S. No error appearing,.the _judgment is 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.