Edens v. State, 5053
| Decision Date | 14 January 1963 |
| Docket Number | No. 5053,5053 |
| Parties | Arnold E. EDENS, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Marcus Fietz, Jonesboro, Gus R. Camp and Guy Brinkley, Piggott, for appellant.
J. Frank Holt, Atty. Gen., by Jack Holt, Jr., Asst. Atty. Gen., Little Rock, for appellee.
The appellant was convicted of having embezzled ten thousand dollars that had been entrusted to him as an agent. Ark.Stats.1947, § 41-3927. The jury left the matter of punishment to the trial judge, who sentenced the defendant to imprisonment for eighteen years, with six years of the sentence being suspended. The motion for a new trial contains 35 assignments of error, most of which are argued in the appellant's brief. We shall discuss only the more important points.
I. The evidence is sufficient to support the conviction. Dr. T. B. Harper, the prosecuting witness, testified that he and the accused sought to purchase certain land in Greene county as a partnership venture. Dr. Harper deposited $10,000 with Edens, who did not have permission to use the money for any purpose except that of purchasing the property. The land, however, was sold by its owner to some third person. When Dr. Harper requested the return of his deposit he discovered that Edens did not have the money and was unable to make restitution. This testimony is sufficient to support the jury's conclusion that Edens unlawfully converted to his own use funds that had been entrusted to him as an agent, as charged in the information.
II. Before the trial the accused filed a motion for a bill of particulars, asking for such matters as copies of any instruments to be used in evidence by the State, any statements taken by the State from its witnesses, and other similar information that we need not detail. The court directed the State to furnish the accused with a copy of Dr. Harper's check for the $10,000 deposit, but in other respects the motion was denied.
Although denominated a motion for a bill of particulars the motion was actually a request for discovery. Our discovery statute does not apply to criminal cases. Bailey v. State, 227 Ark. 889, 302 S.W.2d 796. The true function of a bill of particulars is to require the State to set forth the criminal act in detail and with sufficient certainty to appraise the defendant of the crime and enable him to prepare his defense. Ark.Stats. § 43-804. The information filed against Edens was quite definite in specifying the offense being charged. Hence the so-called motion for a bill of particulars was properly denied, for the accused was already aware of the exact offense for which he was to be tried.
III. On the day of trial the accused asked for a continuance on the ground that a certain file containing information about the transaction with Dr. Harper had been subpoenaed by a federal agency and had not been returned to Edens. At the hearing upon this motion it developed that the file had been in the federal agency's possession for six months or more and that Edens had made practically no effort to retrieve it. In the circumstances the trial court did not abuse its discretion in denying the motion for want of diligence. Bryan v. State, 179 Ark. 216, 15 S.W.2d 312. Furthermore, Edens' testimony in support of the motion was not sufficiently definite to prove that the file contained any specific documents tending to exonerate him.
IV. After the trial had begun, and while the State's first witness was being questioned, defense counsel moved for a mistrial on the ground that the prospective jurors had not been sworn to give truthful answers to questions asked upon the voir dire examination. Ark.Stats. § 39-226. It affirmatively appears that counsel were aware of this omission while the jury was being selected, but they made no objection until after the trial had begun. The judgment recites that defense counsel announced in open court that all members of the jury 'were good for the defendant.' In the circumstances the objection was waived. See Bowlin v. State, 175 Ark. 1115, 1 S.W.2d 553.
V. Dr. Harper testified that he and Edens had intended to pay $55,000 for the land in question, with each to contribute equally. Dr. Harper was allowed to testify that in addition to the payment of...
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Caton v. State
...upon request of appellants. Ark.Stat.Ann. §§ 43--1006, 43--804 (Repl.1964); Smith v. State, 231 Ark. 235, 330 S.W.2d 58; Edens v. State, 235 Ark. 996, 363 S.W.2d 923. Whenever the information contains all the requirements of the former statute to constitute a sufficient indictment by a gran......
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Sims v. State
...Overruling the objection and refusing to declare a mistrial was not error. Moore v. State, 244 Ark. 1197, 429 S.W.2d 122; Edens v. State, 235 Ark. 996, 363 S.W.2d 923; Ferrell v. State, 177 Ark. 742, 9 S.W.2d 15; Davis v. State, 96 Ark. 7, 130 S.W.2d The judgment is reversed and the cause r......
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Nance v. State
...in detail and with sufficient certainty to apprise the defendant of the crime and enable him to prepare his defense. Edens v. State, 235 Ark. 996, 363 S.W.2d 923 (1963); Ark.Code Ann. § 16-85-301(a) (1987). As we stated above, where the information is definite in specifying the offense bein......
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Clark v. State
...the evidence to the admissible purpose or the objection is wholly unavailing. Amos v. State, 209 Ark. 55, 189 S.W.2d 611; Edens v. State, 235 Ark. 996, 363 S.W.2d 923. The record fails to reveal any request on behalf of appellant for a limiting Appellant's points 3 and 7 are without merit b......