Coger v. City of Fayetteville
| Decision Date | 13 September 1965 |
| Docket Number | No. 5146,5146 |
| Citation | 239 Ark. 688,393 S.W.2d 622 |
| Parties | Richard COGER, Appellant, v. CITY OF FAYETTEVILLE, Appellee. |
| Court | Arkansas Supreme Court |
Rex W. Perkins, Rayetteville, James E. Evans, Springdale, for appellant.
Hugh R. Kincaid, Fayetteville, for appellee.
This appeal is from a conviction for disturbing the peace and assault and battery.
Appellant Richard Coger was arrested on December 4, 1964, on a warrant issued by the Fayetteville municipal clerk on an affidavit for warrant of arrest made by a private individual. After making bond, appellant appeared in municipal court on January 7, 1965. He moved that the prosecuting witness be required to post a cost bond [under Ark.Stat.Ann. § 44-301 (Repl.1964)], whereupon the city attorney of appellee City of Fayetteville, after asking leave of court, filed an information against appellant on the same charges. The municipal court then proceeded to trial and appellant, after pleading not guilty, was convicted of the misdemeanors. On appeal to Washington Circuit Court, on March 9, 1965 appellant again moved to require a bond of the prosecuting witness, to quash the information and warrant and to quash the jury panel. These motions were denied. The circuit court jury found appellant guilty of disturbing the peace and assault and battery, from judgment on which comes this appeal.
Appellant urges for reversal that the court erred in failing to grant his motion to quash the warrant and information.
Arkansas Stat.Ann. § 44-301 (Repl.1964) provides: 'In all prosecutions and cases less than felony, in courts of justice of the peace and in other inferior courts, the prosecutor, or some person for him, shall enter into bond, with good and sufficient security, for the payment of all costs which may accure in said prosecution.' This court in Payne v. State Use of City of Booneville, 124 Ark. 20, 186 S.W. 612, held the terms of this statute to be mandatory. However in Thebo v. State, 161 Ark. 619, 256 S.W. 381, the word 'prosecutor' was in effect held to mean the prosecuting or complaining witness and was not applicable to a sheriff. Clearly the statute has no application to law enforcement officials in the performance of their duties; in fact, § 44-305 goes even further and provides that the Justice may permit a private individual who has been maltreated to prosecute without giving the bond. Obviously the evil the statute seeks to reach is capricious prosecution by persons unlearned or unskilled in the law or its enforcement. Thus the municipal court's error in failing to require a cost bond (in the absence of a finding of maltreatment suffered by the affiant so as to constitute the exception provided for in § 44-305) was cured by the filing of the information by the city attorney prior to trial.
It is undisputed that appellant was actually before the court on the earlier warrant when the information was filed immediately prior to the municipal court trial at which time appellant was informed of the state charges against him. The issuance of an additional warrant at that time to compel appellant's presence to answer the charges against him when he was at the moment present for the purpose of answering the identical charges contained in the information would have been a redundant gesture.
We have held repeatedly that a defective warrant, and even the absence of a warrant, is no basis for overturning a conviction. Perkins v. City of Little Rock, 232 Ark. 739, 339 S.W.2d 859. See also Thebo v. State, supra; Blakely v. State, 194 Ark. 276, 108 S.W.2d 477; and Mayfield v. State, 160 Ark. 474, 254 S.W.2d 841.
Appellant's principal point urged for reversal is that the circuit court erred in failing to strike the jury panel on appellant's motion.
When trial in circuit court commenced on March 9, 1965, appellant determined on voir dire that none of the jury panel had registered under the voter registration procedures prescribed by Amendment 51. Appellant moved to quash the entire panel for the reason that they were not at that time qualified electors under the laws of the State...
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Ellingburg v. State
...Even the absence of a warrant would not be ground for reversal or appellant's release. Cassady v. State, supra; Coger v. City of Fayetteville, 239 Ark. 688, 393 S.W.2d 622. III. Under this point, several grounds for reversal are argued by the appellant. All of them deal with various alleged......
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Walker v. State, 5186
...to quash was heard. This necessarily made Act 126 of 1965 squarely applicable to the situation at hand. See Coger v. City of Fayetteville, 239 Ark. 688, 393 S.W.2d 622 (1965); Harris v. State, 239 Ark. 771, 394 S.W.2d 135 (1965), and also Tiner v. State, 239 Ark. 819, 394 S.W.2d 608 We ther......
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Shipp v. State
...because they had not complied with the recent Amendment No. 51. That point was completely answered in the cases of Coger v. City of Fayetteville, 239 Ark. 688, 393 S.W.2d 622; and Harris v. State, 239 Ark. 771, 394 S.W.2d 135; wherein we held that the Act No. 126 of 1965 was valid and was p......
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Harris v. State, 5143
...decided adversely to appellant. Qualifications of jurors are prescribed by statute and not by the Constitution. Coger v. City of Fayetteville, 239 Ark. 688, 393 S.W.2d 622. By the provisions of Act 126 of 1965, which was held by us to be valid legislation in the Coger case, these jurors wer......