The real question in this case concerns the sufficiency of the evidence to support a conviction when the accused's confession is unaccompanied by other proof that an offense was committed. Appellant was charged with stealing a pistol on July 10, 1947. The State proved that Horner had owned the pistol, that a car burned in the summer of 1947, and that in September of that year the appellant sold the pistol to Harbottle. That was the only foundation laid for the prosecuting attorney's testimony that appellant admitted having picked up the weapon at the fire. This confession was made during the course of an investigation of the crime. Bartlett, mentioned by the majority, was a deputy prosecutor participating in the investigation. *Page 52
The applicable principles are perfectly well settled. A confession made out of court will not warrant a conviction without other proof that the offense was committed. Ark. Stats. (1947), 43-2115; McLemore v. State, 111 Ark. 457,164 S.W. 119; Johnson v. State, 198 Ark. 871, 131 S.W.2d 934. Larceny is defined as the felonious stealing, taking and carrying away of another's property. Ark. Stats. (1947), 41-3901. The original taking must be felonious; it is not enough to show that the property was taken by mistake or in good faith and later converted when the mistake was discovered. Wilson v. State, 96 Ark. 148, 131 S.W. 336, 41 L.R.A., N.S. 549, Ann. Cas. 1912B, 339. Here the proof showed merely that Horner had owned the pistol and that appellant sold it some months later. There was not one syllable of testimony indicating that the gun had been stolen by anyone.
It is suggested by the majority that appellant's statement amounts only to am admission and so is not within the scope of the statute. Of course it is well established that an admission of a lesser fact, as distinguished from an admission of the fact of guilt, does not constitute a confession. This distinction could not be better illustrated than by the case of Reed v. State, relied on by the majority. There Reed was indicted for murder. The State was permitted to prove that while he was in jail awaiting trial he made the statement that he was going to play crazy and try to get bond. That statement was obviously a mere admission which might be considered by the jury with the rest of the proof, especially as Reed pleaded insanity. But here the statement, made in the course of an investigation by the prosecuting attorney, was an out-and-out confession that appellant had taken the property. The only conceivable reason for refusing to recognize it as a confession would be that the appellant neglected to say that he feloniously stole, took and carried away the pistol. A complete answer to any such argument is that, there not being another particle of evidence that the pistol was wrongfully *Page 53 taken, the appellant is being convicted either upon his confession alone or upon no evidence whatever.
MILLWEE, J., joins in this dissent.