Clayton v. State

• Decision Date: 25 June 1923
• Docket Number: 73
• Citation: 252 S.W. 589,159 Ark. 592
• Parties: CLAYTON v. STATE
• Court: Arkansas Supreme Court

252 S.W. 589

159 Ark. 592

CLAYTON v. STATE

No. 73

Supreme Court of Arkansas

June 25, 1923

Appeal from Crittendent Circuit Court; G. E. Keck, Judge; affirmed.

Affirmed.

Rudolph Isom, for appellant.

The indictment is fatally defective because of a misjoinder burglary and grand larceny being charged, with no relation whatever between the offenses. 97 Ark. 176; 105 Ark. 12; 48 Ark. 94. There is a variance between the larceny count and the proof offered to sustain it. 67 Pa. 54. An unharvested crop is part of the realty, and although appellant could have been indicted under § 2578 C. & M. Digest, he was not. 93 Ark. 81; 100 Ark. 409; Bishop on Statutory Crimes, § 414; 66 Ark. 65; 111 Ark. 180. This was called to the court's attention by objection when he read as part of instruction 2 said § 2518, C. & M. Digest. Question may be raised first time on appeal. 12 Cyc. 811-12; 26 Ill.App 137. The court erred in permitting a purported confession to go to the jury and also in allowing the prosecuting attorney to ask defendant if he had not committed certain other offenses wholly unrelated to offense for which he was on trial. 109 Ark. 322; 91 Ark. 555; 102 Ark. 492; 99 Ark. 604.

J S. Utley, Attorney General, John L. Carter, Wm. T. Hammock, assistants, for appellee.

Appellant made no objection to the two offenses being charged, and the State elected to try him on the second count of the indictment, and the jury were so instructed. 96 Ark. 52; 151 Ark. 240; 141 Ark. 43; 142 Ark. 96. The second count of the indictment was sufficient. Sec. 2518, C. & M. Digest; 100 Ark. 409; 111 Ark. 180. No proper objection was made to it in any event. 80 Ark. 225; 17 C. J. 53, par. 3330, 50, par. 3328; 51, par. 33, 29, 55. No error in admitting evidence of the confession nor in permitting the defendant to be questioned about whether he had not committed certain other crimes. No objections were made nor exceptions saved. 82 Ark. 540; 84 Ark. 128; 109 Ark. 355. There was only one act of larceny, and appellant's assignments of error are not properly preserved, either no objection being made or a failure to obtain a ruling of the court thereon. 79 Ark. 298; 117 Ark. 154; 118 Ark. 310; 151 Ark. 463; 149 Ark. 147.

OPINION

WOOD, J.

Charlie Clayton, the appellant, was indicted by the grand jury of Crittenden County in two counts. The first count was for burglary, and the second for grand larceny. The first count alleged that he "did unlawfully, wilfully, maliciously, burglariously, feloniously and with force break and enter the home of M. C. Williams, with the unlawful, wilful, malicious, burglarious and felonious intent to commit grand larceny, by unlawfully, wilfully, and feloniously taking, stealing and carrying away personal property of the value of more than ten dollars."

The second count alleged that he "did unlawfully and feloniously take, steal and carry away ten bushels of corn of the value of $ 2 per bushel, of the total value of $ 20, the property of M. C. Williams."

Clayton was tried and convicted of grand larceny, and sentenced by judgment of the court to one year in the State Penitentiary. From that judgment he appeals.

1. The appellant contends that the indictment was fatally defective because it joined the offenses of burglary and grand larceny, where the proof showed that there was no relation between the two offenses, the charge of burglary being the entering of the house of Williams with the intent to commit a felony, and the charge of grand larceny being the stealing of corn from the field of Williams. This contention of the appellant cannot be sustained, for the reason that the indictment does not on its face reveal the alleged defect of which appellant complains. Furthermore, if this defect were shown on the face of the indictment, the State elected to try appellant only on the second count of the indictment for grand larceny, which was a good indictment for that offense.

2. The appellant next contends that there was a fatal variance between the second count and the proof offered to sustain it; that the testimony offered by the State tended to show that the appellant went into a field and severed from the soil of Williams roasting ears growing thereon, of the value of more than $ 10. Appellant contends that this constituted trespass and not larceny, under § 2518, C. & M. Digest, which provides: "If any person shall sever from the soil of another any vegetable or produce growing thereon, of the value of one dollar or more, * * * and shall take and carry away, or convert the same to his own use, with intent to steal the same, he shall be adjudged guilty of larceny in the same manner as if the article so taken had been severed at some different and previous time."

The appellant is not in an attitude to complain here of a fatal variance between the second count in the indictment and the proof offered to sustain it, for the reason that he did not call attention to such objection in the trial court. Such alleged error in the ruling of the trial court is not made one of the grounds of his motion for a new trial. This was necessary. True, the appellant alleges, as one of the grounds of his motion for a new trial, that the verdict was contrary to the evidence, but the testimony for the State tended to prove the charge of grand larceny as set up in the second count of the indictment.

3. The appellant next contends that the court erred in permitting a purported confession of appellant to go to the jury because the testimony tended to prove that such confession was not free and voluntary. Witness Curlin testified for the State as follows: "Q. Tell the jury whether or not you had any conversation with this defendant concerning M. C. Williams, or concerning this case. A. I did. Q. Where? A. Down in the office. Q. Do you know when it was with reference to the time that the case was to be tried that you talked to him? A. No, I don't know just exactly the number of days, but it was several days after the case should have come up. Q. To refresh you, do you know whether it was--you talked to him the day it was to come up, or do you know? A. No sir. The day I talked to him was the day they brought him back from Memphis. Q. Mr. Curlin, before he talked to you about the case, was any inducement held out to him to get him to talk about it? A. None whatever. Q. Or any abuse or anything of that kind used to get him to talk about it? A. No sir. We were just laughing and talking about the circumstances. Q. Was he laughing about it? A. Yes sir. Q. Was he telling you about some occurrence? A. Yes sir. Q. Was the conversation on the part of Clayton free and voluntarily made? A. It was."

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