Johnson v. State
| Decision Date | 13 March 1939 |
| Docket Number | No. 4116.,4116. |
| Citation | 126 S.W.2d 289 |
| Parties | JOHNSON et al. v. STATE. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Mississippi County, Osceola District; G. E. Keck, Judge.
Henry Johnson, Dan Johnson, and Dollie B. Johnson were convicted of night-riding, and they appeal.
Judgments against Henry Johnson and Dan Johnson affirmed, and judgment against Dollie B. Johnson modified and, as modified, affirmed.
Claude F. Cooper, of Blytheville, and T. J. Crowder, of St. Louis, Mo., for appellants.
Jack Holt, Atty. Gen., and Jno. P. Streepey, Asst. Atty. Gen., for the State.
Two informations were filed by the prosecuting attorney in Osceola District of Mississippi County, in each of which Henry Johnson, Dan Johnson, and Dollie B. Johnson were charged with the offense of night-riding.
One information charged that the defendants "* * * did unlawfully, wilfully, feloniously and maliciously write and publish a threatening message or token and post same at Battle's Ferry Landing to Dean's Island near Pecan Point, in said district, county and state, in which they threatened to do violence to certain cotton pickers employed to work on the farm of Trice Battle, among whom was ____ Letson, whose further name is to this informant unknown, if the said cotton pickers did not stay out of the cotton fields of the said Trice Battle; that said message or token was written with the felonious and unlawful intent to intimidate and threaten the said cotton pickers on the farm of the said Trice Battle; (that the defendants united, confederated and banded themselves together to do an unlawful act in the night time) and by writing and posting the following notice, which is made a part of this information:
The charging part of the other information is exactly the same as the one copied above except that it names Rufus Branch, instead of Trice Battle, as the man whose cotton pickers were intimidated from working, and mentions Dick Robinson and Albert Fisher as the cotton pickers who were intimidated, instead of ____ Letson.
During the progress of the trial the court permitted the prosecuting attorney to amend each of the informations by inserting the words enclosed in the parentheses: "that the defendants united, confederated and banded themselves together to do an unlawful act in the night time." When permission was given to make this amendment, and when the amendment was made, the presiding judge stated: "The court offers to permit the defendant to have such additional time as he may desire to meet the amendment, if he is not now prepared to meet it." No one of the defendants requested the time which the court offered to give, and the trial proceeded upon the information as amended.
This action of the court was not assigned as error in the motion for a new trial, and it is not here insisted that this action was erroneous. It appears, therefore, that if there were any error in permitting this amendment, that error was waived. The amendment did not change the nature of the crime charged or the degree thereof, and was therefore permissible under sec. 24 of Initiated Act No. 3, which appears as section 3853 of Pope's Digest.
It is insisted, however, that the informations as amended do not charge a public offense. In the case of Kosier v. State, 163 Ark. 513, 260 S.W. 404, which, like the instant case, was a prosecution under what is commonly called the night-riding statute, it was held that "An indictment for night-riding, * * *, being substantially in the language of the statute, was sufficient." Here, the indictment, not only employs the language of the statute, but recites the facts which constituted a violation thereof, and it was, therefore, sufficient to charge that offense.
No objection was made to the fact that the trial was had upon both the informations, but error is assigned in the refusal of the court to grant the defendants a severance upon the trial of these informations. Section 3140, C. & M. Digest, which granted the right to sever two defendants jointly indicted for a felony, was amended by section 29 of Initiated Act No. 3 of 1937, supra, to read as follows: In the recent case of Graham & Seaman v. State, Ark., 121 S.W.2d 892, 893, it was held that in the trial of persons charged with a felony not capital, the denial of their motion for a severance was, under the amendatory act (section 3976, Pope's Digest), within the discretion of the trial court, and was reversible only when that discretion had been abused. We think there was no abuse of this discretion in the instant case in denying the right of severance, especially in view of the fact that the defendants were charged with having conspired and confederated together to violate the law, and it was, therefore, necessary and proper to show their joint participation in the acts constituting a violation of the law which the information charged.
A special demurrer was filed to each information, in which it was alleged that the night-riding statute, which the accused were charged with having violated, contravened the 1st Amendment to the Federal Constitution, U.S.C.A., in that it abridged the freedom of speech and the right of the people peaceably to assemble, as well as Section 6 of Article 2 of the Constitution of this State upon the same subject, and also that the statute was in violation of the 14th Amendment to the Federal Constitution, U.S.C.A., guaranteeing all persons the equal protection of the laws.
We do not think the legislation is violative of these constitutional provisions. The law applies alike to all persons who violate its provisions, and we find nothing in it intended or calculated to...
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