STATEMENT BY THE COURT.
Appellant prosecutes this appeal from a judgment of conviction of grand larceny for stealing two sets of harness from the Fayetteville Ice Company.
The testimony tended to show that two sets of harness were taken from the barn of the ice company in Fayetteville on the 7th of April, 1933, one set being steel hame harness in good condition, and the other wooden hame in fairly good condition. These sets were breech harness with leather tugs, one set being worth $25 and the other $35 to $40. *Page 104
No one saw the appellant around the barns of the ice plant that night or during the day. A witness living in the northeastern part of Oklahoma near the Kansas line testified that Buster Brown tried to sell him some harness on the 9th of April, and that one set was steel harness and the other wooden harness both being in good condition and recently oiled. Appellant offered to sell him both sets of harness for $18 and finally come down to $9, but witness did not purchase, but did offer to eve him $5 for the harness to see what he would do. This was about 3 o'clock Sunday afternoon. Witness said there was another man in the car with appellant, but he did not get out and did not speak.
Another witness who said he worked for the ice company on April 7, and that it was part of his business to look after the teams and the harness, said that the ice company lost some harness on the night of April 7. He had locked the harness in the granary that evening, and the next morning he discovered the lock and chain had been broken and the harness taken. One set of harness had steel hames and leather tugs. Each set had knobs on the hames and 4 bridles and 3 collars were also taken.
Appellant denied that he had stolen any harness; said that on the morning of April 7, he went to Jim Smith's place to get him to take him to Joplin to get work; that Smith couldn't spare his car that day and witness stayed all day with him; went into Fayetteville and called his wife that evening, and Lee Weaver took him and his wife back out to Jim Smith's, where he remained all night; that they didn't go to Joplin on Saturday because Smith couldn't get away. He said also that the harness he had with him in Oklahoma belonged to Jim Smith; that he had seen it and had suggested that they take it along and sell it; that Jim Smith's wife and his wife were with them, and that the harness they had with them was leather harness, and one set had metal hames with knobs; that he had not seen any collars but that they had 4 bridles; the other set of harness had wooden hames and both were in fairly good condition; admitted that they offered to *Page 105 sell the harness to both Ewers and Frank McDonald; said they left Joplin about noon and went to Charlie Collins' house to see the little girl that Mrs. Smith had reared; met Joe Flyn, whom appellant knew, and he wanted appellant to take him to Galena to see George Vance; said they offered to sell the harness to a brother-in-law of George Vance, and failing to do so, put it back in the car and went back to Joplin and brought the harness back with them; admitted that he told the sheriff that they didn't take any harness to Joplin, and was not in the State of Kansas; said further that he had been convicted of grand larceny and car theft; denied again that he had stolen any harness, and reiterated that he had had Jim Smith's harness.
Other witnesses corroborated appellant's statement, and Jim Smith said appellant and his wife stayed all night at his house on Saturday night, and appellant suggested that they take some harness that witness had and sell it. Said appellant brought the harness back, and they had it now, and that no one had been out to look at it; denied that appellant brought any harness to his house. He also testified from whom he had bought the sets of harness and gave their names and address.
Appellant said he told the people to whom he offered to sell the harness that he was quitting farming and didn't need the harness.
The sheriff stated that Buster Brown told him that he took no harness to Joplin and brought no harness back with him; that Jim Smith and his wife told him that no harness went to Joplin in the car.
The court instructed the jury, refusing to give the instruction requested on circumstantial evidence, and they returned a verdict of guilty and assessed his punishment at one year in the penitentiary. (after stating the facts). The sufficiency of the evidence to sustain the verdict is challenged here. *Page 106
Certain harness, definitely described, was stolen from the ice company at Fayetteville. It answered the description of the harness offered for sale by appellant to two different people in Oklahoma, appellant contending that the harness offered for sale belonged to Jim Smith, and was taken on the trip by them to Joplin for sale, and later returned and left at Smith's home. Smith and his son, witnesses for appellant, were shown to have been convicted of accessory after the fact of grand larceny, and appellant himself had twice been convicted of grand larceny.
Appellant's explanation of his possession of the property offered for sale is very unsatisfactory, and he admitted offering harness for sale shortly after the harness was stolen from the ice company, the description of which closely resembles that stolen from the ice company, but no witness who had seen the harness that belonged to the ice company had examined that offered for sale by appellant. Treating the identification from description as sufficient to warrant the belief that it was the same property, no error was committed in telling the jury that the inference arising from the possession of property recently stolen could be considered by them, it being a question whether the property was in the possession of appellant when discovered.
The evidence is sufficient to support the verdict. It is doubtful from the record whether the court failed and refused to give an instruction on circumstantial evidence no such instruction being requested that would warrant this objection as an assignment of error in the motion for a new trial. Lowmack v. State, 178 Ark. 928, 12 S.W.2d 909.
Moreover, the court gave correct instructions upon the credibility of witnesses, the weight to be given to the testimony, the presumption of innocence and reasonable doubt, and could have refused to give the instruction on circumstantial evidence without committing error. Taylor v. State, ante p. 8.
We find no error in the record, and the judgment is affirmed. *Page 107