Butler v. State

• Court: Arkansas Supreme Court
• Writing for the Court: HOLT, J.
• Citation: Butler v. State, 129 S.W.2d 226, 198 Ark. 514 (Ark. 1939)
• Decision Date: 05 June 1939
• Docket Number: 4128
• Parties: BUTLER v. STATE

129 S.W.2d 226

198 Ark. 514

BUTLER v. STATE

4128

Supreme Court of Arkansas

June 5, 1939

Appeal from Sebastian Circuit Court, Fort Smith District; J. Sam Wood, Judge; affirmed.

Judgment affirmed.

D. L Grace and I. S. Simmons, for appellant.

Jack Holt, Attorney General, and Jno. P. Streepey, Assistant Attorney General, for appellee.

OPINION

HOLT J.

A jury in the Fort Smith district of the Sebastian circuit court convicted Willie Butler, appellant, of the crime of robbery and fixed his punishment at twenty-one years in the state penitentiary.

The information upon which appellant was tried charges " . Willie Butler, of the crime of robbery committed as follows, to-wit: The said defendant, in the county, district and state aforesaid, on the 20th day of December, 1938, did unlawfully and feloniously and forcibly and by fear and intimidation, take, steal, and carry away $ 15.21 from the person and possession of John Backen, against the peace and dignity of the state of Arkansas."

Appellant first contends that the above information is not sufficient for the reason that it does not contain the allegation that the $ 15.21 was gold, silver or paper money of the value of $ 15.21, or that said money had any value at all. We cannot agree with appellant in this contention.

A careful search of the record in this case fails to disclose that appellant filed any demurrer to the information in question, that any action was ever taken by the trial court on any such alleged demurrer, or that any exceptions were made by appellant and preserved in this record. This court in Boatright v. State, 195 Ark. 611, 113 S.W.2d 107, in passing upon a situation similar to that presented here, said: "The transcript does not reflect that a motion to quash the indictment was filed by appellant or that any objection was made to overruling such a motion. It is true that in the motion for a new trial appellant states the trial court erred in overruling his motion to quash the indictment. However, the record does not show that such a motion was filed or that any objection was made to overruling same."

However, if we concede that the demurrer was duly filed, presented to the trial court, overruled, and appellant's exceptions duly saved and the alleged error properly preserved in the motion for a new trial, still we are of the view that the information in the instant case is good. In 1936 the people of Arkansas under the power vested in them by Amendment No. 7 to the Constitution of this state, commonly known as the initiative and referendum amendment, initiated Act No. 3 entitled, "An Act to Amend, Modify and Improve Judicial Procedure and the Criminal Law, and for Other Purposes." Among the provisions of this Act, as initiated, are the following sections of Pope's Digest:

"Section 3851. The language of the indictment must be certain as to the title of the prosecution, the name of the court in which the indictment is presented, and the name of the parties. It shall not be necessary to include statement of the act or acts constituting the offense, unless the offense cannot be charged without doing so. Nor shall it be necessary to allege that the act or acts constituting the offense were done willfully, unlawfully, feloniously, maliciously, deliberately or with premeditation, but the name of the offense charged in the indictment shall carry with it all such allegations. The state, upon request of the defendant, shall file a bill of particulars, setting out the act or acts upon which it relies for conviction.

"Section 3852. Form. An indictment may be substantially in the following form:

'The State of Arkansas, vs. 'John Doe.

'In the Pulaski Circuit Court.

'The grand jury of Pulaski county, in the name and by the authority of the state of Arkansas, accuse John Doe of the crime of murder in the first degree (or other crime, as the case may be), committed as follows: The said John Doe, on January 1, 1936, in Pulaski county, did murder Richard Roe, against the peace and dignity of the state of Arkansas'."

By these provisions the form of indictment has been greatly simplified and the necessary allegations materially shortened. We hold, therefore, that the allegations of the information in the instant case are sufficient even though it is not alleged therein that the $ 15.21 taken from John Backen was gold, silver, or paper money, or that it had any value. Since the enactment of the above legislation, such technical allegations are no longer necessary. If the defendant felt that he was not sufficiently informed as to the act or acts upon which the state relied to convict him, § 3851, supra, gives him a remedy by requiring the state to furnish him a bill of particulars. He made no such request in this case.

The cases cited by appellant were decided prior to the enactment of the above legislation and do not control here.

Appellant next contends that there is a variance between the charge in the information and the proof in that the information charges that the person robbed was John Backen when the proof shows it was John Brocken.

A careful search of this record again discloses that appellant does not raise this question of variance in the trial of this cause. He did not claim that the person he robbed was any one other than John Backen named in the information. He asked no instructions on the issue of variance nor did he attempt to set out the variance between the information and proof in his motion for a new trial and to raise this issue here for the first time on appeal comes too late.

This court in Whitney v. State, 176 Ark. 771, 4 S.W.2d 9, said: "The first assignment of error is an alleged variance between the indictment and proof with reference to the...