Hoover v. State, CR-77-187

• Decision Date: 27 February 1978
• Docket Number: No. 2,No. CR-77-187,CR-77-187,2
• Citation: 562 S.W.2d 55,262 Ark. 856
• Parties: John Wesley HOOVER, Jr., Appellant, v. STATE of Arkansas, Appellee
• Court: Arkansas Supreme Court

Page 55

562 S.W.2d 55

262 Ark. 856

John Wesley HOOVER, Jr., Appellant, v. STATE of Arkansas, Appellee.

No. CR-77-187.

Supreme Court of Arkansas, Division No. 2.

Feb. 27, 1978.

Jack L. Lessenberry, Little Rock, for appellant.

Bill Clinton, Atty. Gen. by Joseph H. Purvis, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

John Wesley Hoover, Jr. was found guilty of obtaining personal property of the value of more than $35 under Ark.Stat.Ann. § 41-1901 (Repl.1964). He seeks reversal of the judgment, contending that the information should have been dismissed, that the evidence was insufficient to support the verdict and that there was prejudicial error in statements made by the prosecuting attorney in closing argument. We find no error and affirm.

Appellant contends that the information charging him should have been dismissed at the conclusion of the state's evidence. But the grounds for dismissal argued here were not then urged in the trial court and cannot properly be raised for the first time on appeal. French v. State, 260 Ark. 473, 541 S.W.2d 680; Dyas v. State, 260 Ark. 303, 539 S.W.2d 251. Furthermore, appellant has not made a convincing argument or furnished any authority for his present contention that the information should have been dismissed because it should have been laid under Ark.Stat.Ann. § 41-1906 (Repl.1964), which deals with false written statements to be used as a basis for credit, instead of § 41-1901. This argument is based upon the premises that strict construction given penal statutes requires application of § 41-1906 and that an act containing special provisions must be read as an exception to a general rule in an earlier act. Under the Dixon rule, this court is not required to treat such points. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606.

Appellant argues that even though it might appear that he was properly charged under § 41-1901, that the evidence on behalf of the state falls clearly within the provisions of § 41-1906, and that the latter specifically governs the conduct shown by that evidence. When we view the evidence in the light most favorable to the state, as we must, it also clearly falls within the provisions of § 41-1901. No instruction was requested which would have permitted the jury to find appellant guilty of the misdemeanor defined in Ark.Stat.Ann. § 41-1906 instead of the felony of which he was found guilty.

On superficial examination, it appears that the misdemeanor might be a lesser included offense of that charged by the information. We need not decide that question, however. As we will presently point out, the state's evidence, viewed in the light most favorable to it, clearly tended to show that appellant was guilty of the greater offense, and the verdict was supported by substantial evidence. If § 41-1906 did constitute a lesser included offense, appellant cannot now complain that the jury did not consider that statute, because he failed to ask for an instruction that would have permitted it to do so. Perry v. State, 254 Ark. 939, 497 S.W.2d 10; Stevens v. State, 231 Ark. 734, 332 S.W.2d 482.

Appellant's argument that the evidence was insufficient to sustain his conviction is based upon: (1) the information alleged that the money in question was obtained from Dale Hinckle, but his mother was the owner of it, either in her own right or jointly with his aunt, and (2) the money was originally placed in an escrow account of Southwest Realty Company and was not loaned to Hoover until a later date; (3) since Dale Hinckle was not the real owner of the property and the real owner did not testify, appellant was denied his constitutional right to be confronted by his accusers.

Appellant relies upon Von Tonglin v. State, 200 Ark. 1142, 143 S.W.2d 185 and Andrews v. State, 100 Ark. 184, 139 S.W. 1134. Those cases are distinguishable, but not because both involve larceny instead of false pretenses. In Von Tonglin, the fatal variance was that the evidence showed that the cow stolen belonged to Mrs. F. M. Randolph, the mother of Joe Randolph, who was named as its owner in the indictment. It was specifically pointed out in that case, however, that there was no evidence that the son had the exclusive possession, or right to possession of the cow. In Andrews, the variance was not fatal. The ownership was alleged to be in a partnership. The partners were named, as was the partnership. It was held that variance in the name of one of the partners was immaterial because the property was sufficiently identified by reason of the fact that the partnership was correctly named. It was clearly indicated in Andrews that correctly naming the injured party is essential to the identification of stolen property in indictments for larceny and kindred offenses. Looking to other cases, we find that in a larceny case, allegation of ownership in one having exclusive possession and control of the property stolen is permissible and that proof that actual ownership or title is in another is not a fatal variance. Cook v. State, 80 Ark. 495, 97 S.W. 683; Monk v. State, 105 Ark. 12, 150 S.W. 133; Houpt v. State, 157 Ark. 171, 247 S.W. 770. Subsequent to our decision in Von Tonglin, we held that it is not error to allege ownership in one who was in possession and control of the property. Tate v. State, 204 Ark. 470, 163 S.W.2d 150.

We have also held that the allegation of general ownership in a named person is sufficient to allow proof of special ownership, such as that of a bailee, in that person. Brown v. State, 108 Ark. 336, 157 S.W. 934. In Monk v. State, supra, there was not a fatal variance, even though a watch and fob stolen belonged to a wife by virtue of a gift from her husband, who was named as the owner in an indictment for larceny, when the evidence showed that the wife had given them to him for safekeeping and that he had not returned them to her at the time they were taken from under the pillow of the bed occupied by both. It has also been held in a larceny case that it was fairly inferable that a landlord had possession and special ownership of seed cotton grown on his farm by a tenant, when the evidence showed that the landlord had a lien on the cotton to secure the payment of rent amounting to one-fourth of the cotton and that, by agreement with the tenant, the landlord would sell the cotton and apply the excess over the rent to the tenant's account with him. Holden v. State, 168 Ark. 465, 270 S.W. 596. It is wholly immaterial who owns the stolen property, if, at the time it is stolen, it is in the possession and under the control of another person alleged in an indictment to be the owner, and possession and control in such a case constitutes special ownership. Harrell v. State, 169 Ark. 1038, 278 S.W. 45.

Robbery has been considered a kindred offense, in that the requirements as to allegations of ownership are precisely the same as in larceny. Boles v. State, 58 Ark. 35, 22 S.W. 887. We have held that there was not a fatal variance between allegation of ownership in a bank cashier of money stolen in a robbery of a bank and evidence showing that the cashier was the officer of the bank in charge of the money and that it was taken from the bank and out of his custody by putting him in fear. Jenkins v. State, 131 Ark. 312, 198 S.W. 877. In Powell v. State, 251 Ark. 46, 471 S.W.2d 335, cert. den. 406 U.S. 917, 92 S.Ct. 1763, 32 L.Ed.2d 115, a robbery case, we said that ownership may be laid in an indictment, either in the real owner or the person in whose possession the property was at the time of the theft.

We have also held that an allegation that money was obtained by false pretenses from a named person is a sufficient allegation of ownership in that person and a sufficient identification of the money taken to withstand a demurrer. Silvie v. State, 117 Ark. 108, 173 S.W. 857.

We take the crime charged here to be sufficiently analogous to larceny that allegations of ownership in one from whom the money was obtained by the false pretense is sufficient and proof that it was actually owned by someone else is not a fatal variance. See Flannigan v. State, 232 Md. 13, 191 A.2d 591 (1963); State v. Cobb, 122 W.Va. 97, 7 S.E.2d 443 (1940). We have held that, in false pretense, it is not necessary that the indictment charge that the person from whom the money or other thing of value is obtained suffered any loss or damage, and that the crime is complete when the property is obtained. Fisher v. State, 161 Ark. 586, 256 S.W. 858. This is the same reasoning we have applied in the case of robbery and analogous to that to which we have resorted in larceny cases where there is a special ownership.

Even in jurisdictions where an allegation of ownership is mandatory, it has been held that proof of actual or constructive possession by, or of any legal interest or special property in the person alleged in the indictment to be the owner is sufficient. See Flannigan v. State, supra; State v. Cobb, supra. See also, Barnett v. State, 152 Tex.Cr. 626, 216 S.W.2d 218 (1948). Alleging ownership in an agent of the owner is sufficient if the agent is in possession of the property. People v. Emmel, 292 Ill. 477, 127 N.E. 53 (1920).

Appellant contends that Dale Hinckle never had actual physical possession of the funds involved and that they were, when he obtained them, in an escrow account of Southwest Realty Company, a corporation. We find that there was substantial evidence to show that, when the alleged false representations were made by Hoover, Dale Hinckle was an agent of his mother and aunt having constructive possession or such control of the money to support an allegation of ownership by him.

Hoover was an officer and director of Southwest Realty Company. Lee DeBoard was also an officer and director of this corporation. Dale Hinckle was in the insurance business. Hoover and DeBoard wanted an insurance agency in connection with their real estate company and met with...