Tate v. State
Decision Date | 08 June 1942 |
Docket Number | 4261 |
Citation | 163 S.W.2d 150,204 Ark. 470 |
Parties | TATE v. STATE |
Court | Arkansas Supreme Court |
Appeal from White Circuit Court; E. M. Pipkin, Judge; affirmed.
Judgment affirmed.
Ralph Morrow, for appellant.
Jack Holt, Attorney General and Jno. P. Streepey, Assistant Attorney General, for appellee.
OPINION
On an information charging grand larceny, appellant, William Tate was tried and convicted, and his punishment assessed at one year in the state penitentiary. For reversal two errors are assigned: (1) that the trial court erred in permitting the prosecuting attorney, over the objections and exceptions of appellant, to amend the information; (2) that the evidence is not sufficient to support the verdict.
The information, among other things, charges that "The said William Tate in the county and state aforesaid, on the 5th day of January, A. D., 1942, unlawfully and feloniously did take, steal and carry away one hundred and twenty-five feet of belting, of the value of fifty dollars, and one blow torch, of the value of five dollars, the property of Bob Stephens (S.E. Thompson & Son) against the peace and dignity of the State of Arkansas."
The record reflects that when the first state witness, Bob Stephens, was introduced, the prosecuting attorney made the following statement to the court:
Over appellant's objection, to which proper exceptions were preserved, the state was permitted to amend the information by inserting after the name "Bob Stephens," S.E. Thompson & Son in parentheses. It is our view that no error results from this action of the court for the following reasons:
Section 3840 of Pope's Digest (formerly § 3018 of Crawford & Moses' Digest) provides: "Where an offense involves the commission, or an attempt to commit, an injury to person or property, and is described in other respects with sufficient certainty to identify the act, an erroneous allegation as to the person injured, or attempted to be injured, is not material."
In construing this section of the statute in Tucker and Peacock v. State, 194 Ark. 528, 108 S.W.2d 890, this court had under consideration an information in effect the same as that in the instant case. In the Tucker case, it was alleged in the information, among other things, that the "said Vance Tucker . . . in the county of Drew, and state of Arkansas on or about the 15th day of December, A. D., 1936, did then and there take, steal and carry away twelve hogs, the property of Bailey Jones in Lincoln county and transported same to the home of Vance Tucker in Drew county, contrary, etc., . . ." There this court said:
Here we think the information describes the offense of grand larceny with sufficient certainty to identify the act and an erroneous allegation as to the true owner of the property is not material and does not constitute error.
It is also undisputed in the instant case that Bob Stephens as the superintendent of the sawmill in question was in possession and control of the property at the time it was stolen, and, as pointed out in the Tucker case, supra, it was not error to allege in the information that he was the owner.
Still another reason why no error was committed is that § 24 of Initiated Act 3, adopted at the General Election November 3, 1936 (now § 3853 of Pope's Digest) permits the amendment of indictments or informations. The only limitation on such amendment is that it relate to "matters of form, " and not "change the nature or the degree of the crime charged."
We think it clear that the amendment allowed by the court here did not have the effect of changing the nature of the crime or the degree thereof and that no error was committed in permitting the amendment.
In Brewer v. State, 195 Ark. 477, 112 S.W.2d 976, this court in construing the effect of § 3853 of Pope's Digest, said: See, also, Johnson v. State, 197 Ark. 1016, 126 S.W.2d 289.
In testing the legal sufficiency of the evidence to support the verdict, it must be viewed in the light most favorable to the state. Turnage v. State, 182 Ark. 74, 30 S.W.2d 865; Clayton v. State, 191 Ark. 1070, 89 S.W.2d 732; Slinkard v. State, 193 Ark. 765, 103 S.W.2d 50; Combs v. State, 194 Ark. 1155, 107 S.W.2d 526; Smith v. State, 194 Ark. 264, 106 S.W.2d 1019.
The record reflects that the state relied largely for conviction upon the testimony of Clyde Hale, an accomplice. Before the conviction of appellant, therefore, may be allowed to stand, there must be under our statute, § 4017, Pope's Digest, corroboration of the testimony of Clyde Hale.
In considering the effect of this section of the statute this court in the recent case of McDougal v State, 202 Ark. 936, 154 S.W.2d 810, said: See, also, Smith v. State, ...
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Hoover v. State, CR-77-187
...in Von Tonglin, we held that it is not error to allege ownership in one who was in possession and control of the property. Tate v. State, 204 Ark. 470, 163 S.W.2d 150. We have also held that the allegation of general ownership in a named person is sufficient to allow proof of special owners......
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Cooley v. State
...which is now Section 3853, Pope's Digest; Bennett and Holiman v. State, 201 Ark. 237, 144 S.W.2d 476, 131 A.L.R. 908; Tate v. State, 204 Ark. 470, 163 S.W.2d 150; and Underwood v. State, 205 Ark. 864, 171 S.W.2d 304. III. Use of Written Statements of Witnesses. This embraces assignments num......