Powell v. State
| Decision Date | 25 February 1905 |
| Citation | 85 S.W. 781,74 Ark. 355 |
| Parties | POWELL v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Miller Circuit Court, JOEL D. CONWAY, Judge.
A. S Gibson and W. F. Kirby, for appellant.
The defendant was not served with a true copy of the indictment as required by law. 43 Ark. 391; 60 Ark. 504. The remarks of the prosecuting attorney were improper. 58 Ark. 473; 62 Ark 126; 69 Ark. 184.
Robert L. Rogers, Attorney General, for appellee.
The objection to the copy of the indictment furnished was not made in time. 43 Ark. 391; 46 Ark. 141; 39 La.Ann. 1060.
Appellant was indicted, tried and convicted of murder in the first degree, and appeals to this court.
The copy of indictment served upon him before arraignment omitted the word "deliberation," contained in the original. Upon arraignment the defendant pleaded not guilty, and made no objection by reason of the defect in the copy, but after conviction he filed his motion in arrest of judgment on this ground.
A defendant in custody, accused of a capital offense, is entitled to have a copy of the indictment delivered to him by the clerk at least forty-eight hours before the arraignment. Kirby's Dig. § 2274. This is a right, however, which he may waive, and does waive by pleading to the indictment upon arraignment and going into trial without objection on this ground. Wright v. State, 42 Ark. 94; Johnson v. State, 43 Ark. 391; McCoy v. State, 46 Ark. 141.
It is contended on behalf of the appellant that, while he would have been held to have waived a failure to furnish him with any copy of the indictment at all, he had a right to rely upon the correctness of the copy in fact furnished to him, and, so relying upon it, is not deemed to have waived a substantial defect in such copy. The reason for this requirement of the statute is that the defendant may be correctly apprised of the nature of the charge which he is called upon to answer. It is not, however, the only method of conveying this information to him. "An arraignment is the reading of the indictment by the clerk to the defendant, and asking him if he pleads guilty or not guilty to the indictment." Kirby's Dig. § 2272. If, upon arraignment, he fails to object to the defective copy of the indictment furnished him, he will be held to have waived it. The only effect of an objection in apt time to the defect in the copy would have been to give the defendant the right to demand a postponement of the arraignment for forty-eight hours, a right which he may waive and does waive by failing to make the objection for the first time after trial and verdict. 1 Bish. Cr. Pro. § 126; State v. Green, 66 Mo. 631; State v. Jackson, 12 La.Ann. 679; Com. v. Betton, 59 Mass. 427, 5 Cush. 427.
The following language of the prosecuting attorney, used in the closing argument to the jury, is assigned as error.
The defendant at the time objected to this statement, and asked the court to exclude it and any evidence tending to show a killing in the perpetration of robbery from the jury, which motion the court overruled, and the defendant duly saved exceptions.
In the case of Rayburn v. State, 69 Ark. 177, 63 S.W. 356, the court held that, under an indictment for murder which did not charge the offense to have been committed in the perpetration of or an attempt to perpetrate robbery, it was error to instruct the jury that, if they found beyond a reasonable doubt that the defendant, in the perpetration of or in the attempt to perpetrate robbery, shot and killed the person named in the indictment he would be guilty of murder in the first degree. Appellant contends that the remarks of the prosecuting attorney, which, it is argued, the court sanctioned by refusing to exclude them, amounted to an erroneous instruction, within the rules laid down in the Rayburn case. The two cases are entirely dissimilar upon the facts, in the...
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Davidson v. State
...guarantees to the accused the right to have a copy of the indictment; but that may be waived. McCoy v. State, 46 Ark. 141; Powell v. State, 74 Ark. 355, 85 S.W. 781; Hobbs v. State, 86 Ark. 360, 111 S.W. It provides that the accused shall be "informed of the nature and cause of the accusati......
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