Brewer v. State, 4078.

• Decision Date: 24 January 1938
• Docket Number: No. 4078.,4078.
• Citation: 112 S.W.2d 976
• Court: Arkansas Supreme Court
• Parties: BREWER v. STATE.

Page 976

112 S.W.2d 976

BREWER v. STATE.

No. 4078.

Supreme Court of Arkansas.

January 24, 1938.

Rehearing Denied February 21, 1938.

Appeal from Circuit Court, Sharp County; John L. Bledsoe, Judge.

J. M. Brewer was convicted of giving a check without having sufficient funds in the bank to pay it, without having made prior arrangements to pay it, and with intent to defraud, and failing to make the check good within ten days after notice that it was unpaid, and he appeals.

Affirmed.

Roy Mullen, of Walnut Ridge, for appellant.

Jack Holt, Atty. Gen., and Jno. P. Streepey, Asst. Atty. Gen., for appellee.

McHANEY, Justice.

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, Ark., 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, Acts of 1937, page 1395, provides: "The prosecuting attorney or other attorney representing the State, with leave of the court, may amend an indictment, as to matters of form, or may file a bill of particulars. But no indictment shall be amended, nor bill of particulars filed, so as to change the nature of the crime charged or the degree of the crime charged. All amendments and bills of particulars shall be noted of record." 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 appell...