31 S.W. 149 (Ark. 1895), Downs v. State

Citation:31 S.W. 149, 60 Ark. 521
Opinion Judge:BATTLE, J.
Party Name:DOWNS v. STATE
Attorney:J. F. Sellers for appellant. E. B. Kinsworthy, Attorney General, for appellee.
Case Date:May 11, 1895
Court:Supreme Court of Arkansas
 
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Page 149

31 S.W. 149 (Ark. 1895)

60 Ark. 521

DOWNS

v.

STATE

Supreme Court of Arkansas

May 11, 1895

Appeal from Conway Circuit Court, JEREMIAH G. WALLACE, Judge.

Judgment affirmed.

J. F. Sellers for appellant.

The word "upon" renders the indictment uncertain. 27 A. & E. Enc. Law, p. 699. The word "upon" can not be stricken out as surplusage. Whart. Cr. Pl. & Pr. secs. 158 (8 ed.); 10 A. & E. Enc. Law, pp. 545-6, 554. The indictment was not good at common law. 29 Ark. 147; const. art. 2, sec. 8; 140 N.Y. 134. See 26 Ark. 330; 27 id. 493; 34 id. 263; 37 id. 408; 41 id. 359; 43 id. 93; 22 S.W. 955.

E. B. Kinsworthy, Attorney General, for appellee.

"No indictment is insufficient, nor can the trial judgment or other proceedings thereon be affected by any defect which does not tend to the prejudice of the substantial rights of the defendant on the merits." Sand. & H. Dig. sec. 2076. This section does not conflict with art. 2, sec. 8, constitution, 1874. Appellant could not have misunderstood, or been misled by, the form of the indictment. 55 Ark. 532; 54 Ark. 492-3-4; Ib. 662-3; 49 id. 499. The use of a wrong word will not affect the validity or sufficiency of an indictment, where the meaning is not thereby changed, and the substantial rights of defendant are not thereby prejudiced. 10 Am. & Eng. Enc. Law, p. 546; 20 Tex. 450; 103 Ind. 170. If the word is unnecessary or redundant, it will not vitiate the indictment. 10 Am. & Eng. Enc. Law, p. 552; 25 Ala. 64.

OPINION

[60 Ark. 522] BATTLE, J.

Appellant was indicted for and convicted of rape. The indictment against him, omitting the caption, is as follows: "The grand jury of Conway county, in the name and by the authority of the State of Arkansas, accuse Will Downs, of the crime of rape, committed as follows, to wit: The said Will Downs, in the county and State aforesaid, on the first day of December, 1894, in and upon one Polly Bridenbough, [60 Ark. 523] a female, forcibly and feloniously did make an assault, and upon her the said Polly Bridenbough, then and there, forcibly and against her will, feloniously did ravish and carnally know, against the peace and dignity of the State of...

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