Murry v. State

• Decision Date: 14 November 1921
• Docket Number: 233
• Citation: 234 S.W. 485,150 Ark. 461
• Parties: MURRY v. STATE
• Court: Arkansas Supreme Court

234 S.W. 485

150 Ark. 461

MURRY v. STATE

No. 233

Supreme Court of Arkansas

November 14, 1921

Appeal from Craighead Circuit Court, Jonesboro District; R. E. L Johnson, Judge; reversed.

Judgment reversed and cause remanded.

Sloan & Sloan, for appellant.

1. The offense, if any, became complete in Crittenden County, and the venue of the action was in that county. The presumptive rule from the law of sales adopted by the court, that a delivery to the carrier was delivery to the consignee applies only between a vendor and vendee, and is a presumption which was never intended to apply to a criminal case. 10 C. J. 228, § 317; 63 Md. 179; 141 Ark. 161; 71 Id. 398. Section 2875, C & M. Digest, does not apply. 16 Corpus Juris, 195; 150 Iowa 46; 129 N.W. 336; 13 Mont. 112; 32 P. 413; 19 L. R. A. 775 and note; 21 Wend. 509.

2. The indictment is defective in not charging the offense--omits to name any one as the person who removed the cotton. An indictment should be certain to every intent, and without intendment to the contrary. 6 Ark. 165; 42 Am. Dec. 689; 22 Cyc. 293. C. & M. Dig., § 3017, relates only to the correction of misnomers. 110 Ark. 51. The Phillips case, 35 Ark. 384, is not in point. In that case no inconsistency occurs in the indictment by accusing a person of removing mortgaged property, and then, as in this case, charging an unnamed person, or blank, with removing property subject to a landlord's lien. 27 Idaho 223; 147 P. 786; 199 Mo. 261 97 S.W. 860.

3. There was a fatal variance between the allegation in the indictment charging the removal of "one bale of cotton of the value of sixty dollars, upon which cotton one L. D. Horn had a landlord's lien," and the uncontradicted evidence that Horn's lien, if any, was only on an undivided interest therein. 66 Ark. 120; 55 Ark. 244; 70 Id. 144; 21 Tex.App. 520; 2 S.W. 859.

4. The admission in evidence of the purported copy of Murry's letter to Strong & Cartwright, was a clear violation of the best evidence rule. 66 Mo.App. 663; 67 Me. 446; 61 S.W. 937; 11 Ark. 504; 54 Am. Dec. 212; 12 Ark. 692.

5. Proof of value was an essential ingredient of the offense charged. 105 Ark. 172. And the testimony of the witness, Harrell, on the market value of the cotton shipped to Memphis, as to his opinion of the market value without fixing time, place, grade or condition of cotton, and without proof of the grade or condition of the cotton shipped, was clearly incompetent.

6. The court's instruction on the burden of proof and the presumption of innocence was misleading, confusing and contradictory. Underhill on Criminal Evidence, 2nd Ed., § 22; Id. § 23, p. 42; 9 Enc. of Ev. 924. Neither conviction nor acquittal should be emphasized in an instruction. 139 P. 1156. See also 156 U.S. 432; 16 Corpus Juris, 984; 46 L. R. A. (N. S.) 1149, 1156; 71 Ark. 398; 83 Id. 81, 84; 69 Id. 537.

J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.

1. The venue was in Craighead County. C. & M. Dig., § 2875.

2. Where the accused fails to demur to an indictment, and elects to wait and challenge the sufficiency of the indictment by motion in arrest of judgment after the verdict is returned, the motion will be overruled, if the language of the indictment is such that it can be gathered therefrom that the essentials of the crime are charged, either directly or by reasonable inference. 131 Ark. 542; 110 Ark. 549; 2 Stand. Enc. of Procedure, 1015; 16 Fed 376; 168 Id. 682.

3. The variance is not fatal. The proof shows that neither Horn nor his agent knew that appellant mixed the cotton with cotton grown elsewhere, until after it had been shipped. Appellee mixed it with other cotton at his own peril. 5 R. C. L. § 4, p. 1052; 44 Ark. 447.

4. The admission of the copy of appellant's letter in evidence, if erroneous, was harmless, and therefore not reversible. 111 Ark. 272; 112 Id. 507; Id. 269.

5. Harrell's testimony as to the value of the cotton was admissible for the purpose of showing that the value of the cotton was more than $ 10, the purpose for which it was introduced. 105 Ark. 172.

OPINION

WOOD, J.

The appellant was convicted on an indictment which reads as follows:

"The grand jury of Jonesboro District, Craighead County, in the name and by the authority of the State of Arkansas, accuse H. D. Murry of the crime of removing mortgaged property committed as follows, to-wit: The said * * * in the county, district and State aforesaid, on the 24th day of January, A. D. 1921, did unlawfully, knowingly and feloniously remove from the limits of the State of Arkansas one bale of cotton of the value of sixty dollars, upon which cotton one L. D. Horn had a landlord's lien to secure the payment of one hundred dollars rent due him by the said H. D. Murry as his tenant, with the felonious intent to defeat the holder of said lien in the collection of the said debt secured by such lien; against the peace and dignity of the State of Arkansas."

The appellant moved to arrest the judgment on the ground that the indictment did not charge the appellant with a public offense.

The statute under which the appellant was indicted reads in part as follows: "It shall be unlawful for any person to sell, barter, exchange or otherwise dispose of, or to remove beyond the limits of this State, or of the county in which a landlord's or laborer's lien exists, or in which a lien has been created by virtue of a mortgage or deed of trust, any property of any kind, character or description, upon which a lien of any kind enumerated above exists; provided, such sale or barter, exchange, removal or disposal of such property be made with the intent to defeat the holder of such lien in the collection of the debt secured by such mortgage, laborer's or landlord's lien." Crawford & Moses' Digest, § 2552.

In Davis v. State, 131 Ark. 542, 199 S.W. 902, we said: "Certainty in an indictment is required when charging an offense, and a demurrer thereto should be sustained unless the language of the indictment charges an offense with reasonable certainty, so as to put the accused on notice of the nature of the charge he is called upon to meet; but when the sufficiency of the indictment is called in question by motion in arrest of judgment, the rule is different, and if it can be gathered from the language of the indictment that the essentials of the crime are charged either directly or by reasonable inference, then the motion should be overruled." See also Loudermilk v. State, 110 Ark. 549, 162 S.W. 569.

It will be observed that the grand jury accused H. D. Murry "of the crime of removing mortgaged property, committed as follows, to wit, etc." The indictment then proceeds to describe the manner in which the offense is alleged to have been committed, and this description shows that the offense consisted in feloniously removing from the limits of the State of Arkansas a bale of cotton, of the value of $ 60, upon which one L. D. Horn had a landlord's lien to secure the payment of $ 100 rent due him by the said H. D. Murry as his tenant, etc." The word "said" in legal terminology, means "aforementioned, already spoken of," and is used in the indictment to designate the appellant. After the appellant's name is mentioned the word "said" in the clause following relates back to the appellant's name; and although in the first or accusing clause of the indictment the offense is designated as "removing mortgaged property" yet the specific acts alleged to constitute the offense are set forth, and this description shows the alleged crime to be the removal of one bale of cotton out of the State of the value of $ 60 upon which L. D. Horn had a landlord's lien, etc. So, although the offense was erroneously designated as "removing mortgaged property" it was in fact the removal of property upon which there was a landlord's lien.

In Kelly v. State, 102 Ark. 651 at 651-55, 145 S.W. 556, we said: "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.'" See also Speer v. State, 130 Ark. 457 at 457-462, 198 S.W. 113.

Sec. 2552 Crawford & Moses' Digest provides: "It shall be unlawful for any person * * * to remove beyond the limits of this State, or of the county in which a landlord's or laborer's lien exists * * * any property of any kind, * * * upon which a lien of the kind enumerated above exists; provided such * * * removal or disposal of such property be made with the intent to defeat the holder of such lien in the collection of the debt secured by such * * * landlord's lien."

Sections 2554 and 2555 prescribe the penalty for a violation of the above statute.

The trial court gave instruction No. 2 on its own motion, which after setting forth the provisions of the above statute, reads in part as follows: "If you find from the evidence in this case, beyond a reasonable doubt, that the defendant, H. D. Murry, in the Jonesboro District of Craighead County on the 24th day of January, 1921, or at any time within one year next before the 19th day of April, 1921, removed or caused to be removed from the State of Arkansas, without the legal authority or consent of the prosecuting witness, L. D. Horn, one bale of cotton of the value of sixty dollars, * * * from...