Autrey v. State

Smith, J., (after stating the facts). Appellant complains of instruction No. 8, set out in the statement of facts, and says that it was erroneous and prejudicial because it contains a comment upon the evidence. We think the instruction was an improper one, but we can not say that it was prejudicial, as there were circumstances which were not only suspicious but which are, in our opinion, legally sufficient to sustain a verdict of guilty; and, as the defendant undertook to explain away these circumstances and to show that, although the crime of lareency had been committed, that he had no guilty part in its commission, it was the province of the jury to determine whether or not any of these statements were false, contradictory or improbable, and, if so, the jury had the right to consider that fact in determining the guilt or innocence of the accused. This instruction did not tell the jury the weight to attach or the effect to give to their finding, if one was made, that defendant had made false, contradictory or improbable statements, but told them merely that if they so found, they might consider that fact; and we conclude, therefore, that the in-' struotion was not prejudicial. The instruction No. 1, requested by appellant, was a proper instruction under the allegations of the indictment, .and might very well have been given, but the purport of this instruction was to charge the jury that it was necessary to find that the defendant was present at the time the animal was stolen, and if that fact did not appear from the evidence beyond a reasonable doubt, that they should return a verdict of not guilty. But the instruction numbered 7, given by the court, so stated the law to be, and the jury could have been left in no doubt that they must find, before they could convict the defendant, that if the defendant did not himself steal this steer, he must have .been present when the same was stolen, aiding, abetting and assisting in such stealing. The second and third instructions requested by appellant deal with the question of asportation, and were both refused by the court. The court gave an instruction in the language of the statute, defining .the crime of larceny. And under the facts of this case, we think there was no error in refusing to give the requested instructions, if they were conceded to be correct declarations of law, because they were abstract. Appellant does not deny driving the steer into his father’s lot; and this was, of course, a sufficient asportation to constitute the crime of larceny. It is true, lie says, there was no connection between that act and the subsequent killing of the animal ; but that was the chief question at issue in the trial, and the verdict of the jury is conclusive upon that question of fact. The jury must have found that appellant drove the animal into the lot for the purpose of subsequently killing it, and that this was done under the cpver of darkness at the first favorable opportunity, and that he was present when it was killed, and that, if he did not himself kill it, he advised that it be done, encouraged and assisted those who did it, and this evidence, if true, is sufficient to 'Sustain the allegation of asportation. Appellant also complains of the action of the court in refusing to exclude the testimony of the witness, Charles Brammer, in regard to the loss of a certain hog owned by him. But, as has been stated, the proof shows that the hog was killed and 'butchered at about the same time and near the same place that the steer was, and that both animals were loaded into the wagon and taken to Mulberry, and this evidence is competent as bearing upon the question of appellant’s intent. In Rapalje on Larceny and Kindred Offenses, § 200, it is said: “On the question of intent, or if of the res gestae, proof of the stealing of other property than that for which the defendant is on trial may be admissible. Thus, in a prosecution for the theft of .a horse, it is not error to admit testimony as- to the contemporaneous theft of .a saddle and other articles, in the same. neighborhood, where the court charges the jury that such evidence can not be considered as tending to show the theft of the horse, but only as tending to show the intent of defendant in whatever action they may find from the evidence was done by him. And on trial for cattle theft,' evidence of the theft of others than those charged may be considered, if alike involved in the res gestae, to show guilty knowledge and intent.” And in section 201 of the same text, it was further said: “Under an indictment for larceny, evidence of the subject-matter of another indictment for laroeny may he admitted where the two offenses are so connected as to he parts of the same transaction; as where two horses belonging to different persons are stolen by conspirators in pursuance of a previous design.” . Finding no error, the judgment of the court below is affirmed.