The opinion
John A. Fogleman, Justice. I dissent from the reversal of this case and the court’s holding on Point III as to the rifle shells. The only argument appellant advances on this point is presented as his Point II in the following form:
“The Court erred in permitting Tools, Rifle Shells, Hand Drill and Box of Items introduced in evidence which was highly prejudicial to this Appellant.”
In his argument he states that there is no evidence that any of the tools or rifle shells, other than the items listed in the information charging him with larceny, were stolen and that the State could have no reason for introducing them other than creation of prejudice against appellant.
This case is somewhat different from Yelvington v. State, 169 Ark. 359 , 275 S.W. 701 . In that case the objection argued here related to testimony concerning other thefts and the possession of property stolen in these thefts. This is not the state of affairs in this case.
The State’s evidence showed: The officers did not search the garage at the home of appellant’s parents. Appellant himself unlocked the garage, went in and picked up various items from various places therein— some out of a tool box, some from a number of other places. The State offered in evidence, through a deputy sheriff who was present, all of the property received by the officers from appellant on this occasion. The deputy sheriff stated that he brought this property to the sheriff’s office where he locked it up. There the property was apparently kept together in a box, because it was described as being in a box by appellant when he testified.
In view of the court’s cautionary instruction referred to in the majority opinion, I can see no error. In the Yelvington case, it was stated that this court had adopted a very liberal rule in declaring exceptions to the general rule of proof of other crimes. Many of them are discussed in that case and others in Alford v. State, 223 Ark. 330 , 266 S.W. 2d 804 . The matter before us does not actually involve proof of other crimes committed by appellant. It involves only evidence of possession by the appellant of property found in such close connection with the property involved in the charge that the evidence regarding its possession and recovery is virtually inseparable. Certainly, the fact of the possession of the rifle shells appeared naturally and incidentally in showing the whole transaction concerning appellant’s confession, his possession of the property with which he was charged with stealing, its recovery and the identification of the items he delivered simultaneously to the officers. Under the authority of Smith v. State, 162 Ark. 458 , 258 S.W. 349 , since all the stolen goods were found together, it was a proper part of the officer’s narrative to tell what had been received from Searcy at that time and place. In the Smith case, a deputy sheriff was permitted to testify that when he arrested an accomplice of the defendant, he found a raincoat stolen from a Dr. Hilton among stolen articles which were in an automobile in which the defendant and the accomplice had been seen earlier. The defendant was charged with the theft of automobile casings belonging to one Lawrence about October 4, 1922. The raincoat had been stolen in July 1922.
It was held in Commonwealth v. Gallagher, 200 Pa. Super. 136 , 186 A. 2d 842 (1962), that a defendant may not complain of a police officer mentioning items of property stolen in burglaries other than the one on which the defendant was charged while testifying as to what he found at the defendant’s residence. This holding is in harmony with ours in the Smith case, and the rule applied in these cases is applicable here.
I would affirm the judgment of the lower court.