Johnson v. State

143 S.W. 593, 102 Ark. 139, 1912 Ark. LEXIS 26

• Court: Supreme Court of Arkansas
• Decided: January 29, 1912
• Status: Published

Opinion

Kirby, J.,

(after stating the facts). No exceptions having been saved to the instructions given by the court, they can not be reviewed here.

It is insisted that the verdict is not sustained by the evidence, and that it was contrary to law, and that the court erred in refusing to instruct a verdict for appellant, and we have concluded this contention is correct.

The contract of employment was written and executed by the parties and the money paid in accordance with its terms; and if appellant agreed to refund the money in case he failed to procure the loan, as the prosecuting witness states he did, but which fact he denies, it is singular that it was not so specified in the contract. It was a valid contract, made without fraud practiced by appellant, or any misunderstanding of its terms by the prosecuting witness; and if there was afterwards an agreement to return the ten dollars in case of not procuring the loan and a failure to do so, it was but a breach of such agreement, for which no criminal prosecution would lie.

In either event, if it had been so specified in the written contract, or if he afterwards agreed to return the money in case of failure to procure the loan, which he denies, he would not have been guilty of larceny or embezzlement in refusing to return it. It would have been but a breach of the terms of the contract, for which he could not be held criminally liable.

The evidence does not show that he agreed to return the money, and he denied, when called upon to do so, that he had made any such contract or agreement.

The evidence is not sufficient, in our opinion, to support the verdict, and the judgment is reversed, and the case dismissed.