Kelley v. State

• Decision Date: 18 March 1912
• Citation: 145 S.W. 556,102 Ark. 651
• Parties: KELLEY v. STATE
• Court: Arkansas Supreme Court

145 S.W. 556

102 Ark. 651

KELLEY v. STATE

Supreme Court of Arkansas

March 18, 1912

Appeal from Prairie Circuit Court, Southern District; Eugene Lankford, Judge; reversed.

Judgment reversed, and cause remanded.

Thomas & Lee, C. F. Greenlee and Manning & Emerson, for appellant.

1. The court had no jurisdiction. The clerk failed to certify copies of the indictment, proceedings, order of removal, as required by statute. Kirby's Digest, § 2326; 38 Cyc. 938; 58 S.W. 686, 690; 7 Nev. 83-95; Black, Law Dict. 1183. (1 ed.); 15 Ark. 624; 33 Id. 815; 36 Id. 237; 38 Id. 221; 48 Id. 94, 105; 63 Id 130; 72 Id. 613.

2. The indictment charges no offense. Acts 1909, § 4, p. 506.

3. There was a fatal variance in the proof and the indictment. Defendant was charged with "falsifying returns," while the evidence only tends to show a false count of ballots. 15 Cyc. 376; 91 Ill. 525; 25 Minn. 106; 61 N.W. 322 29 Minn. 351; 65 N.W. 800; 13 Ark. 62; 29 Id. 299; 34 Id. 160; 60 Id. 141; 61 Id 115; 55 Id. 389; Id. 242.

4. In view of the authorities supra, the court's charge was erroneous.

Hal L. Norwood, Attorney General, and Wm. H. Rector, Assistant, for appellee.

1. The omission of the clerk to certify copies of indictment, motion for change of venue, order, etc., was an irregularity merely, and was waived by failure to object before verdict. It is not jurisdictional. Kirby's Dig., § 2326; Wolf v. State, ms. op.; 73 Ark. 148; 35 Id. 118; Kirby's Dig., § 2427; 43 Ark. 233; 46 Id. 141; 77 Id. 428.

2. The indictment charges an offense under Acts 1909, § 4. This act makes it an offense in any manner to falsify the returns of an election. The inconsistency between the commencement and the descriptive part of an indictment is immaterial. 34 Ark. 282; 36 Id. 246; 71 Id. 82; Joyce on Ind. § 185; 60 Minn. 309. The "returns of an election" consist of the certificate, tally sheets, poll books and ballots. Kirby's Dig., §§ 2832, 2833-4-5-6-7, etc.

3. There is no variance, and there is no error in the instructions. Cases supra.

WOOD, J. KIRBY, J., dissents.

OPINION

WOOD, J.

1. Section 4 of act 165 of the Acts of 1909, provides as follows: "Any judge or clerk, serving at any such primary election, who shall in any manner falsify the returns of the same, or knowingly make a false count of the ballots cast, or aid or abet any such act of any other person, or knowingly permit such to be done, shall be deemed guilty of a felony, etc."

Appellant, who was a clerk at the primary election held in Monroe County on January 15, 1910, was indicted under the above section. The indictment charged him with the crime of "falsifying returns of election, committed as follows:" The indictment then sets out his official character, and recites that a primary election was called, etc.; then recites that appellant "did then and there unlawfully, wilfully, falsely, fraudulently and feloniously and knowingly falsify the returns of Brinkley Township in said election to the central committee, in that the said Tom Kelley did then and there falsely, fraudulently and knowingly take from W. L. Hinton, a candidate for county treasurer of Monroe County at said primary election, 68 votes so cast for the said W. L. Hinton aforesaid, and credit the same to W. L. Graham, a rival candidate for treasurer aforesaid," etc.

The case was, upon change of venue, tried in the southern district of the Prairie County Circuit Court. The appellant, after a verdict of guilty was returned against him, moved an arrest of judgment, setting up that the court was without jurisdiction because there was not filed in the Prairie Circuit Court a certified copy of the indictment, nor of the motion for change of venue filed in the circuit court of Monroe County before the commencement of the trial, etc. And also alleging that the indictment used in the Prairie Circuit Court did not charge appellant with a public offense.

It appears that the clerk of the Monroe Circuit Court, after an application for change of venue had been filed and an order of the court made ordering the case transferred to the circuit court of Prairie County, Southern District, made a transcript of the record entries showing the orders of the court up to and including the granting of the change of venue, but, instead of making a transcript of the indictment and other papers, mailed the indictment and other papers filed in the case to the clerk of the Prairie Circuit Court, and attached to his transcript of the record entries a certificate to the effect that the foregoing contained a true copy of the record, and then further certified as follows: "I further certify that the original indictment, the demurrer, the motion for a continuance and the motion for change of venue are also transmitted with this cause."

After change of venue is ordered in criminal cases, the statute requires that "the clerk of the county in which the same is pending shall make out a full transcript of the record and proceedings in the cause, including the order of removal, the petition therefor, if any, and the recognizance of the defendant, and of all witnesses, and shall immediately transmit the same, duly certified under the seal of the court, to the clerk of the court to which the removal of the cause is ordered." Kirby's Digest, § 2326.

The appellant contends that the failure of the clerk of the Monroe Circuit Court to certify copies of the indictment and application for change of venue was not a compliance with the above statute, and that therefore the Prairie Circuit Court had no jurisdiction.

The purpose of the statute was to enable the court in the county to which the venue was changed to have before it as a part of the record the contents of the indictment, so that the court and jury before whom the cause was to be tried should be informed of the nature of the charge against the accused. It was absolutely necessary, to give the court jurisdiction, that there should be a copy of the indictment that was returned by the grand jury in the county where the cause originated. There could not be a trial without a copy of the indictment or the original indictment itself. While the statute does not contemplate that the original indictment shall be sent to the county to which the change of venue is ordered, nevertheless where this is done, under the certificate of the clerk showing that it was the original indictment, it is sufficient to give the court to which the case is sent jurisdiction. A copy of the indictment could not advise the court any more accurately of the charge than the original indictment. The irregularity in the transmission of the original, duly certified to, instead of a copy, as the statute directs, works no prejudice to the right of the accused to have the court and jury before whom he is tried notified of the charge made against him, and to be fully advised himself of such charge.

Under our statutes and decisions a case will not be reversed where the defects and irregularities in the proceedings are merely formal, and do not result in prejudice to the accused. The defect in the record complained of here was not substantial, and could not possibly have resulted in any prejudice to appellant. Kirby's Digest, § 2605; Lee v. State, 73 Ark. 148, 83 S.W. 916, and cases there cited.

2. Under the statute it is an offense to falsify the returns of a primary election, and also an offense to knowingly make a false count of the ballots cast. These are separate and distinct offenses. The indictment names the offense, "falsifying election returns," but in setting forth the particulars constituting the offense it shows that the real offense charged is that of a "false count of the ballots."

A discrepancy or mistake in the naming of an offense in an indictment will not vitiate the same if the particular facts necessary to constitute the offense are specifically and accurately described. "The name of the crime is controlled by the specific acts charged, and an erroneous name of the charge does not vitiate the indictment," State v. Culbreath, 71 Ark. 80, 71 S.W. 254; Johnson v. State, 36 Ark. 242; Lacefield v. State, 34 Ark. 275; Harrington v. State, 77 Ark. 480, 91 S.W. 747. The indictment is valid as a charge against appellant for making a false count of the ballots cast.

3. There was evidence tending to show that at a primary election in Monroe County, held in January, 1910, a number of votes which were cast for W. L. Hinton for county treasurer were counted for his opponent, W. L. Graham. A number of witnesses testified that at such election they had voted for Hinton. When the ballots bearing the numbers opposite their respective names were examined, they appeared to have been cast for Graham, an opponent of Hinton for the nomination to the office of county treasurer. One of the witnesses...