Johnson v. State
| Decision Date | 13 November 1939 |
| Docket Number | 4143 |
| Citation | 133 S.W.2d 15,199 Ark. 196 |
| Parties | JOHNSON v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Arkansas Circuit Court, Southern District; W. J Waggoner, Judge; reversed.
Judgment reversed, and cause dismissed.
Peyton D. Moncrief, A. G. Meehan and John W. Moncrief, for appellant.
Jack Holt, Attorney General and Jno. P. Streepey, Asst. Atty. General, for appellee.
The appellant was indicted for grand larceny alleged to have been committed on July 15, 1935, by unlawfully and feloniously taking, stealing and driving away one head of cattle, the property of Hannaberry Plantation Company, a corporation.
The trial was begun on April 24, 1939, the jury was selected and sworn, and after hearing the statements of counsel and witnesses on behalf of the state, the court quashed the indictment and discharged the jury from further deliberation. The court held the defendant to the next grand jury in a bond of $ 400.
The witnesses for the state testified in substance that the property stolen was the property of Lesser Goldman Company, a corporation, the indictment charging that it was the property of Hannaberry Plantation Company.
Appellant on July 7, 1937, filed in court a plea of former jeopardy, alleging that he had been previously placed on trial and in jeopardy for this alleged offense; that on the former charge he had entered his plea of not guilty, a jury had been selected, impaneled and sworn to try him, and opening statements of both the state and defendant had been made; some of the state's witnesses had testified, when the court took the case from the jury on its own motion and without consent of the defendant, quashed the indictment and discharged the jury. This plea was verified and attached to it was the duly certified copy of the former indictment on which the defendant had been placed in jeopardy, filed in open court. The former indictment was the same as the information filed by the deputy prosecuting attorney, except the indictment charged that the Hannaberry Plantation Company was the owner of the property, and the information filed by the deputy prosecuting attorney charged that the owner was the Lesser Goldman Company. The indictment and information charged the same offense, the difference being in the allegation as to the ownership of the property stolen.
The court, in announcing his ruling when he quashed the indictment, stated that there was a variance between the allegation and the proof as shown by the state. The information filed by the deputy prosecuting attorney was filed more than three years after the offense was alleged to have been committed.
After hearing the evidence on the defendant's plea of former jeopardy, the court overruled same, to which ruling of the court the appellant objected and excepted. The appellant then filed a demurrer to the information filed by the deputy prosecuting attorney, because it was filed by the deputy prosecuting attorney of the Southern District of Arkansas county, and also because the court had ordered defendant held to the grand jury. The demurrer was overruled and exceptions saved. Appellant was then tried on the information. The jury returned a verdict of guilty, fixing the punishment of appellant at one year in the state penitentiary. Motion for new trial was filed and overruled, and the case is here on appeal.
The court heard evidence on appellant's plea of former jeopardy, which was, in substance, that the appellant was the same person indicted by the grand jury, and the indictment charged the property stolen as being the property of Hannaberry Plantation, when it was in fact the property of the Lesser Goldman Company. The proof also shows that the Hannaberry Plantation was owned by the Lesser Goldman Company; that two witnesses were called in the case against Johnson, and both testified. Petit jury and the court were present and heard the case in the regular way in the court room; the indictment and information were identified by the circuit clerk of Arkansas county. The evidence also showed that the information charged the appellant with the same theft that the indictment charged; the same crime. Evidence showed that the jury was selected, impaneled and sworn to try the case, and before any witnesses were called for the appellant, indictment was quashed and the jury discharged by the court from further consideration of the case. There was a question as to the ownership of the property, and the jury was discharged by the court. The defendant and his attorney made no motion. Case was dismissed because of a question of ownership of the cattle. Neither the defendant nor his attorney made any motion to quash the indictment, or for a dismissal of the case, or to discharge the jury.
The offense charged in the information is the same offense charged in the indictment, and while it was charged in the indictment that the property belonged to the Hannaberry Plantation Company, the evidence shows conclusively that this company belonged to Lesser Goldman Company.
Section 3836 of Pope's Digest is as follows: "No indictment is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by any defect which does not tend to the prejudice of the substantial rights of the defendant on the merits."
Section 3851 of Pope's Digest states what the indictment must contain, and it also provides that the state, upon request of the defendant, shall file a bill of particulars, setting out the act or acts upon which it relies for a conviction.
The indictment in the instant case was sufficient to charge the appellant with the crime of stealing cattle, and it was sufficient to advise him of the offense with which he was charged, and there was nothing in the indictment that in any way tended to prejudice the substantial rights of the defendant on the merits.
Although the indictment charged that the property belonged to the Hannaberry Plantation Company, when it in fact belonged to the Lesser-Goldman Company, it was sufficient that if he had been convicted, the court could have entered judgment on the verdict.
Section 3834 of Pope's Digest provides that the indictment must be direct and certain as regards: "First, the party charged; second, the offense charged; third, the county in which the offense was committed; fourth, the particular circumstances of the offense charged where they are necessary to constitute a complete offense."
The state relies on § 3899 of Pope's Digest, which reads as follows: "The dismissal of the indictment by the court, or demurrer, except as provided in § 3896, or for an objection to its form or substance taken on the trial, or for variance between the indictment and the proof, shall not bar another prosecution for the same offense."
Variance between the indictment and the proof, mentioned in this section, necessarily means a material variance. There is no material variance here. The appellant could have been convicted and the court could have entered judgment. As a matter of fact, the evidence shows the Hannaberry Plantation Company belongs to the Lesser-Goldman Company. It was in possession of the cattle for Lesser-Goldman Company.
"Where an offense involves the commission, or an attempt to commit, an injury to person or property, and is described in other respects with sufficient certainty to identify the act, an erroneous allegation as to the person injured, or attempted to be injured, is not material." Section 3840, Pope's Digest.
Certainly, under this indictment, there was no defect or statement in the indictment that would mislead the appellant or tend to the prejudice of his substantial rights on the merits. That the information charges the same offense that the indictment charged, no one can doubt.
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