Bingaman v. State

• Decision Date: 24 February 1930
• Docket Number: No. 165.,165.
• Citation: 24 S.W.2d 969
• Parties: BINGAMAN v. STATE.
• Court: Arkansas Supreme Court

24 S.W.2d 969

BINGAMAN v. STATE.

No. 165.

Supreme Court of Arkansas.

February 24, 1930.

Appeal from Circuit Court, Sebastian County; J. Sam Wood, Judge.

B. W. Bingaman was convicted for obtaining money on check under false pretenses, and he appeals. Affirmed.

John E. Tatum, of Ft. Smith, for appellant.

Hal L. Norwood, Atty. Gen., and Pat Mehaffy, Asst. Atty. Gen., for the State.

KIRBY, J.

This appeal is prosecuted from a judgment of conviction for obtaining money on a check under false pretenses. The appellant was first indicted for forging and uttering a forged instrument in giving the check, and upon appeal to this court upon a confession of error by the Attorney General the cause was reversed. Binganan v. State, 21 S.W.(2d) 156. Pending the appeal the grand jury without any further directions from the court indicted appellant for obtaining money under false pretenses by the issuance of the check. He moved to dismiss the indictment as having been returned without authority and plead former acquittal.

Appellant contends that the court erred in not quashing the indictment herein, insisting that it was found without authority by the grand jury, since the matter had not been resubmitted to the grand jury by direction of the court after the first indictment was returned. The finding of the indictment for forgery, etc., however, the first indictment, cannot be considered a dismissal of the cause by the grand jury within the meaning of the statute, sections 2997, 2998, C. & M. Digest (2212, 2213, Kirby's Digest), and if such were the case the court held in Marshall v. State, 84 Ark. 90, 104 S. W. 934, 935, in construing the statute, that it has no reference to the independent action of the grand jury over such causes, saying: "It contains no limitation upon the duty of that body after it had been impaneled and sworn to make its inquiries and presentments as broad as the oath it takes. * * * It is the function of the grand jury, therefore, to investigate and reinvestigate concerning matters within their jurisdiction as often as they `have knowledge or may receive information,' and the statute under consideration is not intended to limit or restrain that function."

Nor was the plea of former acquittal available to appellant. It is true that he was convicted of this offense for the same act, that of issuing the check upon a bank in which he had never had an account and cashing it, and upon which he was convicted before for forging and uttering the...