Brewer v. State
| Citation | 112 S.W.2d 976,195 Ark. 477 |
| Decision Date | 24 January 1938 |
| Docket Number | Crim. 4078 |
| Parties | BREWER v. STATE |
| Court | Supreme Court of Arkansas |
Appeal from Sharp Circuit Court; John L. Bledsoe, Judge; affirmed.
Judgment affirmed.
Roy Mullen, for appellant.
Jack Holt, Attorney General, and John P. Streepey, Assistant, for appellee.
Appellant was charged by information with the crime of overdrafting, in that on or about the 24th day of July, 1937 he did unlawfully, feloniously, and with intent to defraud the Hardy Sales Company, give a check to said company for the sum of $ 475.80, drawn on the Security Bank & Trust Company of Paragould, Arkansas, without having sufficient funds in said bank to pay same, and without having made prior arrangements with said bank to pay said check, and when notified that said check had been turned down and unpaid, he failed, refused, and neglected to make good and pay said check within ten days after notice. On a trial, he was convicted and his punishment fixed at confinement in the penitentiary for a period of six months. At the conclusion of the state's testimony, appellant moved the court for a directed verdict, as follows: "The defendant moves for a directed verdict for the defendant because they haven't shown and haven't given ten days' notice before arrest, and because the information is not drawn in accordance with the law, and because they haven't shown by the plaintiff's testimony that the defendant at the time he gave his check knew he didn't have the money in the bank to pay it." The court stated to the prosecuting attorney that he would let him amend the information to read, "and with the intent to defraud." Thereupon, the prosecuting attorney amended the information by inserting the language "and with the intent to defraud," which had been omitted from the charge. The court, thereupon, overruled the motion for a directed verdict, and appellant rested without offering any evidence in his own behalf.
Appellant requested an instruction to the effect, "that the law requires that the defendant must be notified of the nonpayment of the check ten days before any arrest can be had." The court refused to give this request.
Conceding without deciding that the information as originally filed was defective, because it failed to allege that the crime was committed with the intent to defraud, we are of the opinion that the court committed no error in permitting the prosecuting attorney to amend the information in the manner above stated. Section 24 of Initiated Act No. 3, 1936, Acts of 1937, p. 1395, provides: So, it will be seen that an indictment may be amended under this section with the leave of the court provided it does not change the nature of the crime or the degree thereof. The amendment did not have the effect of changing the nature of the crime or the degree thereof. So the court properly permitted the amendment.
We are of the opinion that the court correctly overruled appellant's motion for a directed verdict. Section 3088 of Pope's Digest makes it unlawful for any person, with intent to defraud, to draw a check upon any bank knowing at the time that he has insufficient funds in said bank for the payment of said check in full, upon its presentation, and classifies the offense as a misdemeanor punishable by imprisonment of...
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Owen v. State
... ... It is clear that the indictment clearly apprised the defendants of the crime charged and that the amendment was simply a matter of form, which did nothing to change the nature of the crime otherwise clearly charged. See Underwood v. State, 205 Ark. 864, 171 S.W.2d 304; Brewer v. State, 195 Ark. 477, 112 S.W.2d 976; Castle v. State, 229 Ark. 478, 316 S.W.2d 701 ... Appellant also asserts that the indictment should have been dismissed because it omitted to allege another essential element, i. e., an overt act committed in furtherance of the alleged ... ...
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Tate v. State
... ... 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, 977, this court in construing the effect of § 3853 of Pope's Digest, said: "* * * So, it will be seen that an indictment may be amended under this section with the leave of the court provided it does not change the nature of the crime or the degree thereof ... ...
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Underwood v. State, 4300.
...or the degree thereof. Collins v. State, 200 Ark. 1027, 143 S.W.2d 1; Johnson v. State, 197 Ark. 1016, 126 S.W.2d 289; Brewer v. State, 195 Ark. 477, 112 S.W.2d It is true that under the provisions of that Section such amendments are limited to matters of form, but this section must be read......
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Underwood v. State
... ... information, provided such amendment does not have the effect ... of changing the nature of the crime charged or the degree ... thereof. Collins v. State, 200 Ark. 1027, ... 143 S.W.2d 1; Johnson v. State, 197 Ark ... 1016, 126 S.W.2d 289; Brewer v. State, 195 ... Ark. 477, 112 S.W.2d 976 ... It is ... true that under the provisions of that section such ... amendments are limited to matters of form, but this section ... must be read in connection with §§ 3851 and 3852 of ... Pope's Digest, which make the ... ...