Prokos v. State, CR79-3
| Citation | 582 S.W.2d 36,266 Ark. 50 |
| Decision Date | 18 June 1979 |
| Docket Number | No. CR79-3,No. 2,CR79-3,2 |
| Parties | Edward L. PROKOS, Appellant, v. STATE of Arkansas, Appellee |
| Court | Arkansas Supreme Court |
Howard W. Koopman, Deputy Public Defender, Little Rock, for appellant.
Steve Clark, Atty. Gen., by Alice Ann Burns, Asst. Atty. Gen., Little Rock, for appellee.
The appellant, Edward L. Prokos, was charged with theft of property in violation of Ark.Stat.Ann. § 41-2203 (Repl.1977). The charges arose out of a transaction in which the appellant allegedly sold the rights to an exclusive Arkansas distributorship of chemical products to Harold Parks for $15,000.00. The information alleged that the appellant "did unlawfully, feloniously, take unauthorized control over property having a value in excess of $10,000.00 . . . ."
A jury trial was held on June 14, 1978. After the prosecution rested its case, the appellant and his attorney, the prosecuting attorney and the judge retired to the judge's chambers, where the appellant immediately moved for a directed verdict, claiming that there had been no evidence presented which showed that any property had been "taken, stolen, carried away, rolled away" or "driven away" by the appellant. The prosecuting attorney responded to this motion by stating that it was the position of the state that the appellant had taken unauthorized control over the money paid by Parks when the appellant failed to deliver the chemicals and other materials and supplies he was required to deliver by the distributorship agreement. The trial judge stated that the evidence did not demonstrate an unauthorized taking, but that it did establish a case of theft by deception. The appellant objected to any amendment of the charges, stating that he had not come to trial prepared to defend against a charge of theft by deception. The court, after consideration of Ark.Stat.Ann. § 41-2202(1) (Repl.1977), which details the consolidation of theft offenses under the Criminal Code overruled the appellant's objection and allowed the charge to be amended to allege theft by deception, thereby conforming to the proof. The court then denied the appellant's motion for a continuance, the trial continued and the appellant presented his defense. He was found guilty of theft of property and sentenced to fifteen years' imprisonment in the Department of Correction and a fine of $15,000.00.
We cannot agree with the appellant's contention that the trial judge erred in allowing the information to be amended to conform to the proof, but do agree that a continuance should have been granted, and therefore reverse the judgment and remand the cause.
Ark.Stat.Ann. § 43-1024 (Repl.1977) is a codification of the Arkansas case law dealing with the amendment of a criminal indictment as expressed in Dolphus v. State, 256 Ark. 248, 506 S.W.2d 538; Silas v. State, 232 Ark. 248, 337 S.W.2d 644, cert. den. 365 U.S. 821, 81 S.Ct. 705, 5 L.Ed.2d 698 (1961) and Murray v. State, 249 Ark. 887, 462 S.W.2d 438. The statute reads as follows:
The prosecuting attorney or other attorney representing the State, with leave of the court, may amend an indictment, as to matters of form, or may file a bill of particulars. But no indictment shall be amended, nor bill of particulars filed, so as to change the nature of the crime charged or the degree of the crime charged. All amendments and bills of particulars shall be noted of record.
Ark.Stat.Ann. § 41-2202(1), the section considered by the trial judge before he allowed the information to be amended, provides:
Consolidation of Theft Offenses. Conduct denominated theft in this Chapter (§§ 41-2201 41-2208) constitutes a single offense embracing the separate offenses heretofore known as larceny, embezzlement, false pretense, extortion, blackmail, fraudulent conversion, receiving stolen property, and other similar offenses. A criminal charge of theft may be supported by evidence that it was committed in any manner that would be theft under this Chapter, notwithstanding the specification of a different manner in the indictment or information, subject only to the power of the court to ensure fair trial by granting a continuance or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice or by surprise.
It is clear that this case presents the exact situation for which § 41-2202(1) was designed. Both "theft by taking unauthorized control" (§ 41-2203(1)(a)) and "theft by deception" (§ 41-2203(1)(b)) are contained within the chapter setting out the theft offenses (§§ 41-2201 41-2208). Amending the charge to theft by deception changed neither the nature nor the degree of the crime charged. Both prior to and after the amendment, the appellant was charged with the theft of property having a value of $2,500.00 or more, a Class B felony. The only variation between the initial charge and the charge as amended was the alleged manner of the commission of the theft. Under the provisions of § 41-2202(1), it is not necessary that the evidence establish the theft was committed in the manner alleged in the indictment or information, but rather that the evidence establish the act was committed in Any manner which would constitute theft of property under §§ 41-2201 through 41-2208. Since a conviction for theft of property having a value of $2,500.00 or more would have been proper even if the charges had not been amended, it was not error for the trial court to allow the charges to be amended to conform to the proof.
A motion for continuance shall be granted only upon a showing of good cause and the trial judge shall take into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case. Rule 27.3, Rules of Criminal Procedure. The granting or denial of a motion for continuance is within the discretion of the trial judge and this court will not reverse the trial judge unless there has been an abuse of that discretion. Golden v. State, 265 Ark. ---, 576 S.W.2d 955 (1979); Cotton v. State, 265 Ark. ---, 578 S.W.2d 235 (1979); Holland v. State, 260 Ark. 617, 542 S.W.2d 761. An appellant bears the burden of demonstrating an abuse of discretion in the denial of a motion for a...
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Bell v. State
...a different degree. Second, they are not of the same nature. They include different elements and different proof. See Prokos v. State, 266 Ark. 50, 582 S.W.2d 36 (1979). Third, the nature of the punishments is different. Fuller v. State, 246 Ark. 704, 709, 439 S.W.2d 801, cert. denied, 396 ......
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...are addressed to the sound discretion of the trial court and we do not reverse unless that discretion is abused. Prokos v. State, 266 Ark. 50, 582 S.W.2d 36 (1979). The court attempted to cooperate in obtaining the presence of the witness; however, the witness was unable to appear at the ti......
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Lee v. State, CR
...not changed and if the defendant is not prejudiced through surprise. Jones v. State, 275 Ark. 12, 627 S.W.2d 6 (1982); Prokos v. State, 266 Ark. 50, 582 S.W.2d 36 (1979). There is no distinction between the criminal responsibility of an accomplice and a principal. Swaite v. State, 272 Ark. ......