Porter v. State

• Citation: 185 S.W. 1090,123 Ark. 519
• Decision Date: 01 May 1916
• Docket Number: 375
• Parties: PORTER v. STATE
• Court: Supreme Court of Arkansas

185 S.W. 1090

123 Ark. 519

PORTER v. STATE

No. 375

Supreme Court of Arkansas

May 1, 1916

Appeal from Howard Circuit Court; Jefferson T. Cowling, Judge affirmed.

Judgment affirmed.

Wallace Davis, Attorney General, and Hamilton Moses, Assistant, for appellee.

1. There is no fatal variance between the indictment and proof. Kirby's Digest, § 2233. The indictment and proof sufficiently identifies the illegal act. 32 Ark. 205; 105 Id. 84; 113 Id. 112; 117 Id. 300; Kirby's Digest, §§ 2243, 2228-9; 93 Ark. 408 157 S.W. 935.

2. There is no error in the instructions. Kirby's Digest § 2384; 90 Ark. 460; 64 Id. 253; 65 Id. 547; 52 Id. 187.

3. The testimony of the accomplice was sufficiently corroborated. 64 Ark. 253; 52 Id. 187; 101 Id. 142; 101 Id. 570; 39 Cal. 614; 84 Id. 480.

OPINION

SMITH, J.

Appellants were convicted of grand larceny under an indictment which alleged the ownership of the property said to have been stolen to be in J. B. Sturdivant and W. A. J. Sturdivant. The goods were stolen from a store operated by J. B. Sturdivant, but the proof shows he was conducting the store for his brother W. A. J. Sturdivant, who is the sole owner, and it is said there is a fatal variance between the allegations of the indictment and the proof at the trial. The motion for a new trial preserved other exceptions, but we think they are not of sufficient importance to require discussion.

Notwithstanding the fact that section 2233 of Kirby's Digest provides that if an offense is described with sufficient certainty to identify the act an erroneous allegation as to the person injured is not material, it has been frequently held that an erroneous allegation of ownership in an indictment for larceny is fatal. In the case of Merritt v. State, 73 Ark. 32, 83 S.W. 330, the property stolen was alleged to belong to W., whereas the proof showed it to be the property of W. and C., and it was there said that, in the absence of proof showing exclusive possession in W., the variance was fatal. In support of that holding the court quoted with approval from section 723 of 3 Bishop's New Criminal Procedure. That entire section reads as follows:

"Sec. 723. 1. Where the ownership is joint--as in a business firm, or the like, it must be laid in all. Each name should be given in full; simply the partnership name, for example, not sufficing. Nor, where partners are the owners, need either the fact of the partnership, or the firm name, be averred. And if one of them has such a separate possession as gives him a special property, it will not be ill to lay the ownership in him alone. Where it is laid in three, it will be fatal variance to prove it in two only.

"2. Several--If the thing belongs to A, B, and C, not jointly, but each owning his several part, it is ill to say 'of the goods of A, B, and C,' which means a joint ownership."

The rule there announced states the requirements of a valid indictment except insofar as those requirements have been relaxed by statute. And that there has been a relaxation of this rigidity is shown by the decision of this court in the cases of Davis v. State, 117 Ark. 296, 174 S.W. 567, Andrews v. State, 100 Ark. 184, 139 S.W. 1134, Hughes v. State, 109 Ark. 403, 160 S.W. 209; Ivy v. State, 109 Ark. 446, 160 S.W. 208. In these cases we held it not essential to allege the names of the partners composing a firm, and that where the firm name is correctly alleged an erroneous allegation of the names of the partners composing it is immaterial. The reason for the relaxation is stated in the opinion in the case of Andrews v. State, as follows:

"Now in all of the cases on the point heretofore decided by this court the indictment charged ownership by individuals, and there was no other sufficient identification. In the present case, however, there is another description in stating the partnership name, and to that extent the proof conforms to the allegations of the indictment. The only variance is as to the name of one of the partners. If the statute (Section 2233 of Kirby's Digest) has any application at all to larceny and kindred cases, and if any effect at all is to be given to it in such cases, we must hold that it applies, and that, there being a sufficient identification of the property in stating the partnership name, the statute applies and renders the erroneous allegation as to one of the persons injured immaterial. It is true that ordinarily in cases of this kind the rules...