England v. State

• Decision Date: 08 January 1962
• Docket Number: No. 5017,5017
• Citation: 234 Ark. 421,352 S.W.2d 582
• Parties: W. D. ENGLAND, Jr., Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 582

352 S.W.2d 582

234 Ark. 421

W. D. ENGLAND, Jr., Appellant, v. STATE of Arkansas, Appellee.

No. 5017.

Supreme Court of Arkansas.

Jan. 8, 1962.

John E. Hooker, Pine Bluff, for appellant.

J. Frank Holt, Atty. Gen., by Milas H. Hale, Asst. Atty. Gen., for appellee.

McFADDIN, Justice.

This is an appeal of a misdemeanor case. The appellant, W. D. England, Jr., was charged in the Pine Bluff Municipal Court with the offense of disturbing the peace (§ 41-1401, Ark.Stats.). At the trial a number of witnesses testified; and the appellant was convicted on each of three counts. On appeal to the Circuit Court the case was tried before the Judge without a jury, and the attorneys stipulated as to the testimony, a portion of which was:

'It is stipulated and agreed between the parties that if the prosecution witnesses were present they would testify that W. D. England, Jr., operates a Go-Kart Race Track at approximately 20th and Ohio Street; ¹ that the Go-Kart Race Track has numerous small vehicles that operate between the hours of 7:00 P.M., up to midnight; that these witnesses live anywhere from one block to six blocks away from the Go-Kart Race Track; that during these hours of 7:00 P.M., to midnight there is a constant roaring of motors and is so loud five to six blocks away that they cannot hear their television sets unless turned up to the highest point; that they have difficulty in carrying on a conversation in their own homes and are unable to sleep during the time the motors are being operated; that several witnesses described the noises as if a gasoline lawnmower was being operated right underneath their window for hours at a time. Some witnesses testified that their children were unable to study or to sleep until nearly midnight. * * *'

Trial in the Circuit Court resulted in a conviction of the appellant on two counts, with a fine of $10.00 and costs on each count, and the fines were suspended '* * * on condition that the defendant does not operate so as to disturb the peace, and on payment of the costs.' There was no motion for new trial filed in the Lower Court, the appellant apparently being under the impression that the case could be appealed to this Court as a civil case, according to the provisions of Act 555 of 1953. (§ 27-2106.1 et seq., Ark.Stats.) But that Act relates only to civil cases. McConnell v. State, 227 Ark. 988, 302 S.W.2d 805. In a misdemeanor case there must be a motion for new trial filed in the Circuit Court, if we are to look further than the face of the record. See City of Monticello v. Kimbro, 206 Ark. 503, 176 S.W.2d 152; Holliman v. State, 213 Ark. 876, 213 S.W.2d 617; Long v. State, 216 Ark. 681, 227 S.W.2d 166; and Van Hook v. City of Helena, 170 Ark. 1083, 282 S.W. 673.

Appellant argues most earnestly that upon examination of the face of the record we must reverse the judgment, because--says appellant--the information on which he was tried did not charge an offense. This information, omitting signature and verification, reads:

'The said W. D. ENGLAND, JR. in the County of Jefferson and State of Arkansas on the 1st day of October A.D., 1960, did then and there wilfully, unlawfully and maliciously disturb the peace and quiet of Albert Bridges by operating a go-kart race track ² and juke box in a loud and unusually noisy manner, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Arkansas.'

The appellant says that he was tried for disturbing the peace under § 41-1401, Ark.Stats.; that the information merely showed that he had disturbed the peace and quiet of Albert Bridges; and that disturbing the peace and quiet of one person is not an offense under our statute or at common law.

There are two answers to this argument of appellant. By Initiated Act No. 3 of 1936, Acts 1937, p. 1384, the People of Arkansas adopted a criminal reform measure which did away with many of the technicalities previously required; and, by Constitutional Amendment No. 21, the People provided that offenses prosecuted by indictment might likewise be prosecuted by information. In accordance with the said initiated measure, and this Constitutional Amendment, we weigh the information in this case. Section 43-1006, Ark.Stats. (which is § 22 of the said Initiated Act No. 3) says:

'The language of the indictment must be certain as to the title * * *, the name of the court * * *,...