Downs v. State

• Citation: 31 S.W. 149
• Parties: DOWNS v. STATE.
• Decision Date: 11 May 1895
• Court: Supreme Court of Arkansas

Page 149

31 S.W. 149

DOWNS v. STATE.

Supreme Court of Arkansas.

May 11, 1895.

Appeal from circuit court, Conway county.

Will Downs was convicted of rape, and appeals. Affirmed.

J. F. Sellers, for appellant. E. B. Kinsworthy, Atty. Gen., for the State.

BATTLE, J.

Appellant was indicted for and convicted of rape. The indictment against him, omitting the caption, is as follaws:

"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 1st day of December, 1894, in and upon one Polly Bridenbough, 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 Arkansas."

The only question in the case is, is the indictment sufficient? The appellant insists that it is not, because it does not charge that he ravished or carnally knew Polly Bridenbough. This grows out of the fact that the word "upon" was used once too often. Omitted where it appears the second time, there is no room for the contention. Should it be treated as surplusage in the latter place?

It was evidently used the second time in the indictment through inadvertence. As it appears the last time, it was obviously a clerical error. We cannot see how any one could be misled by it. The intention of the indictment is plain. The word "upon," as used the second time, is manifest surplusage, and should be treated accordingly. We cannot treat it otherwise without disregarding the plain meaning of the indictment, and placing upon it the most absurd and unreasonable construction. According to the view we have taken, the indictment, under the statutes of this state, is sufficient. Sand. & H. Dig. §§ 2075, 2076,¹ 2089, 2090.²

Judgment affirmed.

1. By section 2076, no indictment is insufficient nor can the trial judgment or other proceeding thereon be affected by any defect which does not tend to the prejudice of the substantial rights of the defendant on the merits.

2. By section 2090, a statement of the acts constituting the offense, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended, is sufficient.