20 COLLINS v. -STATE. [184 COLLINS v. STATE.' Opinion delivered June 22, 1931. 1. LAR CENY — SUFFICIENCY OF EVIDENCE:—In a prosecution for stealing a heifer, evidence held 2. LA to sustain a -conviction. RCENY—INTENT. TO . STEAL.—The intent to steal .may be inferred by the jury from proof that defendant killed and sold a heifer belonging to 'another. 3', CRIMINAL LAW — INSTRUCTION AS TO CIRCUMSTANTIAL EVIDENCE.— • In a prosecution for larceny, a requested instruction as to•circumstantial evidence was properly refused where the evidenee was not . circumstantial, but was positive and direct. 4. CRIMINAL LAW — REPETITION OF INSTRUCTIONS.—It was not error to refuse to repeat instructions on the same subject. 5: CRIMINAL LAW—ABSTRACT INSTRUCTION.—A requested instruction not based on evidence was properly refused. . Appeal from Yell Circuit Court, Dardanelle District; A. B. Priddy, Judge; affirmed. Caviness . & Weorge and B. F. Madole, for appellant • Hal L. Norwood, Attorney . General, and Robert Smith, Assistant, for appellee. • Ma-TANEY; J. Appellant was convicted on a charge of grand larceny, for the theft of One brown Jersey heifer, of the value of $13.76, the •property of Everett Mat-thews; and sentenced to one year in • the penitentiary. lie assigns. and relies upon four errors of the trial court to reverse the judgment against him. 1. It is first.said that the evidence is not sufficient tO support the verdict. .The facts are, as shown by the State's witnesses, that said Matthews was the owner of one brown Jersey heifer which disappeared fi . om the pasture near appellant's. home' in Ola. Shortly after its disappearance, Matthews, senior, discovered its hide
COLLINS V. STATE. 21 hanging in front of George 'King's hide hbuse in • .0Ia; and King advised Mr. Matthews that he Iad purchased the heifer.from . appellant, and they butchered-it-in the pasture: near :the Carl Collins' home.. He so teStified in court. Appellant admitted that he sold a heifer to King, but denied that it was the property of Everett Matthews, - and insisted that it belon g ed to . him, his . father and; brother ; that ,his father had. bought: a cow and her calf in 1929, and . that the heifer sold: to King was that..calf: D. W. Matthews, Everett Matthews and his wife •positively identified the hide. This made a question . for :the jury as to : the .identity; of the heifer...Birt; appellant says this . evidence , is insufficient to shOw . that he : had s 1tolen it, and that this; is all the evidence on the snbject; • that the fact that he, with King, butchered this heifer which he had sold to . King; even thoughit were Matthews' property, is not sufficient . to convict of 'larceny.. We' cannot agree with' appellant. Section 2490„Crawford . & Moses? Digest Provides : `,` Every person who shall mark, • steal or kill, or wound, ;with intent to steal, any kind of cattle; pigs, hogs;;sheep or Oats, shall be guilty of a felony . , and upon conviction thereof; be imprisoned at.hard labor in the penitentiary for any time not less than one year;nor more than five years." Appellant and another kilted the heifer, the property of Matthews, sold it to King, and the " intent to steal " could te inferred by the jury froth such facts.' 2. Th is next said the court . erred: in refusing ,to give instruction No. 1, requested by him on circurnstan, tial evidence. The evidence here was not circumstantial, but was positive and direct. No error was therefore committed, and we have held "that it is not improper to refuse to give such an instruction:, even in cases where the conviction was asked wholly upon circumstantial evidence, where the jury was properly instructed as to the burden of proof resting on the State to establish the guilt ' of the accused beyond _ a reasonable doubt and where rea-
22 COLLINS V. STATE. [184 sonable doubt was properly defined." Payne 177 Ark. 413, 6 S. W. (2d) 832. v. State, The court fully and correctly instructed on the credibility of the witnesses, the weight of the evidence, presumption of innocence, and reasonable doubt. 3. It is next said the court erred in refusing requested instruction No. 2 as follows: "Even though the • evidence raises your suspicion of the theft of the yearling by the defendant, Bob Collins, yet, unless the theft is proved beyond a reasonable doubt, you will find the defendant not guilty." • This instruction was fully covered by others given by the court and would have been a repetition. The court is not required to multiply instructions on the same subject to the same effect. 4. It is finally said the court erred in refusing requested instruction No. 3 as follows : "If you find that the defendant, Bob Collins, took the yearling in question, in good faith, under the honest belief that he was the owner thereof, and even though, upon learning afterwards that said yearling was not his own property, converted it to his own use, you will find the defendant not guilty." Wils C on o nceding the correctness of such instruction, [see v. State, 96 Ark. 148, 131 S. W. 336, 41 L. R. A. (N. S.) 549, Am Cas. 191.2B, 339] it was abstract as there was no theory advanced by appellant on which to base it. He and his relatives testified it was their heifer—not that he had taken Matthews' property under the honest but mistaken belief that it was his. 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.