McCarthy v. State

• Decision Date: 10 May 1909
• Citation: 119 S.W. 647,90 Ark. 384
• Parties: MCCARTHY v. STATE
• Court: Arkansas Supreme Court

119 S.W. 647

90 Ark. 384

MCCARTHY v. STATE

Supreme Court of Arkansas

May 10, 1909

Appeal from Ashley Circuit Court; Henry W. Wells, Judge; affirmed.

STATEMENT BY THE COURT.

The appellant appeals from a judgment of conviction of the crime of burglary on the following indictment, omitting caption:

"The said John McCarthy, in the county and State aforesaid, on the 10th day of July, 1908, during the night time of said day, a certain house then and there situated and being owned by Jackson & Gregory, a firm composed of C A. Jackson and Ernest Gregory, as a storehouse feloniously, wilfully and maliciously did break and enter with the felonious intent, the goods, wares and merchandise of the value of $ 11.06, of the personal property of the said Jackson & Gregory, to steal, take and carry away contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Arkansas."

The appellant moved to quash the indictment, alleging that an indictment at the present term was found against him for the crime of burglary, which the court quashed, and then referred the case to the grand jury, which returned the present in lieu of the original indictment, and that the present indictment was found by the jury without taking any testimony, and after a majority of the grand jury who had found the first indictment had been excused from further service upon the grand jury."

The court overruled the motion. Appellant moved for a continuance, setting up that certain witnesses living in Louisiana, if present, would testify to certain facts (reciting them) that would show that appellant on the night of the alleged burglary was in Louisiana, and could not have been at the place where the alleged crime was committed, that appellant, when the first indictment was lodged against him, had subpoenas issued for the witnesses named in the motion and placed in the hands of the sheriff, who had not returned same, that appellant had used due diligence to procure their attendance, and that, if given a reasonable time, he could procure their attendance in person or have their evidence before the jury by deposition. The motion was duly verified and in proper form. The court overruled it.

The evidence tended to prove the allegations of the indictment. The court by consent instructed the jury orally, and no exceptions were saved to the charge of the court. The jury returned a verdict of guilty, assessing the punishment at three years' imprisonment in the penitentiary. The motion for new trial assigned as error the overruling the motion for continuance, and the motion to quash the indictment and the failure to sustain a demurrer to the indictment.

Affirmed.

Hal L. Norwood, Attorney General and C. A. Cunningham, Assistant, for appellee.

1. There is no abuse of discretion whatever in the court's action in denying the motion for continuance. Moreover, since appellant's version of what the absent witnesses would testify was introduced as evidence, he was not prejudiced. 24 Ark. 599; 19 Ark. 92; 26 Ark. 233.

2. The assignment of error as to the refusal to quash the indictment, etc., is without merit. It is settled that the return of an indictment in the manner this was returned is an irregularity merely, not approved by the court, but not ground to quash. 67 Ark. 268, 273; 83 Ark. 321; 29 Ark. 298; 63 Ark. 622;

3. The indictment was sufficient, and the demurrer was properly overruled. Kirby's Dig. §§ 1603, 2227 and note and 2243; 1 Ark. 178; 4 Ark. 58; 5 Ark. 444; 19 Ark. 613.

OPINION

WOOD, J., (after stating the facts).

1. The motion for continuance showed that the witnesses whose presence was desired lived beyond the jurisdiction of the...