Richards v. State

• Decision Date: 28 April 1913
• Parties: RICHARDS v. STATE
• Court: Arkansas Supreme Court

157 S.W. 141

108 Ark. 87

RICHARDS v. STATE

Supreme Court of Arkansas

April 28, 1913

Appeal from Clay Circuit Court, Western District; W. J. Driver Judge; affirmed.

Judgment affirmed.

J. L Taylor and F. G. Taylor, for appellant.

1. The motion to quash the indictment should have been sustained. The law does not authorize the presence of any person in the grand jury room besides the jurors themselves, the prosecuting attorney and the witness. Kirby's Dig § 2211.

2. The plea of former conviction should have been sustained. Instruction 4 was erroneous, because there was no evidence of collusion, and it is elementary that one has the right to plead guilty to an offense to avoid prosecution. 43 Ark. 68; 72 Ark. 419.

Wm. L. Moose, Attorney General, and John P. Streepey, Assistant, for appellee.

1. Under the evidence adduced, the motion to quash was properly overruled. 62 Ark. 516, 535. The presumption of regularity of proceedings of the grand jury will stand until overcome by proof, the burden of which is on the defendant. 96 Ark. 628.

2. The plea of former conviction is not sustained by the evidence. Instruction 4 is correct. 96 Ark. 203, 205; 32 Ark. 726; 70 Ark. 74.

OPINION

KIRBY, J.

This appeal comes from a judgment of conviction upon an indictment for gaming. Appellant moved to quash the indictment because of the presence of a stranger in the grand jury room during the examination of the charge against him and plead former conviction on the trial. The testimony shows that Arthur Dunnaway was employed by the prosecuting attorney of the district as a stenographer, and was present to take down the testimony of the witnesses before the grand jury, and report it to him, and instructed that he should not be present while the grand jury was deliberating or voting upon any charge. The statute provides that no person except the prosecuting attorney and the witnesses under examination are permitted to be present while the grand jury are examining a charge and no person whatever shall be present while the grand jury are deliberating or voting upon a change. Section 2211, Kirby's Digest.

The testimony shows that Dunnaway was present in the grand jury room in the employ and under the direction of the prosecuting attorney, and took in shorthand, the testimony of the prosecuting witness, who stated that he saw the young man in the grand jury room, but that he did not hear him say anything or see him do anything but make notes of the testimony as a stenographer would do. He was not the deputy of the prosecuting attorney, but was present under his direction and acting for him, taking the entire testimony of the witnesses that the prosecuting attorney might be fully advised of the proof upon the charge. It is not contended that he was present when the grand jury were deliberating or voting on the charge, nor does it appear that anything was said or done by him calculated to in any way influence the grand jury.

If it is desirable that the testimony of witnesses before the grand jury be taken in shorthand and reported in full to the prosecuting attorney in order to further the ends of justice, it would be better be done by a stenographer authorized by law to take such testimony and acting under the sanctity of an oath not to disclose any of the secrets thereof, still, we do not think, under the circumstances of this case, that the court erred in overruling the motion to quash the indictment because of his presence in the grand jury room during the examination of witnesses in the capacity in which he was acting, it not appearing that he was present while the grand jury was deliberating or voting on the charge. Bennett v. State, 62 Ark. 516, 36 S.W. 947; Wilfong v. State, 96 Ark. 627, 132 S.W. 928.

It is next contended that the plea of former conviction should have been sustained. The indictment was returned on the 23d day of January, 1913, and charged the appellant with the offense committed as of about June 1, 1912. The plea of former conviction states that he was on the 15th day of December 1912, convicted of the same offense before a justice of the peace, who had jurisdiction, and fined the sum of $ 10; a certified copy of the judgment of...