Silas v. State, 4978

• Decision Date: 23 May 1960
• Docket Number: No. 4978,4978
• Citation: 232 Ark. 248,337 S.W.2d 644
• Parties: A. C. SILAS, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 644

337 S.W.2d 644

232 Ark. 248

A. C. SILAS, Appellant, v. STATE of Arkansas, Appellee.

No. 4978.

Supreme Court of Arkansas.

May 23, 1960.

Rehearing Denied Sept. 12, 1960.

Hugh W. Trantham and Comrade Warrington Knauts, Piggott, for appellant.

Bruce Bennett, Atty. Gen., by Clyde Calliotte, Asst. Atty. Gen., for appellee.

HOLT, Justice.

January 6, 1960, appellant, A. C. Silas, was tried and convicted on an information charging the crime of possessing stolen goods, under § 41-3938, Ark.Stats.1947 [1959 Supp.]. His punishment was fixed at ten years in the penitentiary.

The original information, filed August 6, 1959, charged 'the defendant, A. C. Silas, of the crime of Possession and disposal of stolen goods, committed as follows, to-wit: The said defendant in May and July, 1959, in the Eastern District of Clay County, Arkansas, did unlawfully, willfully, knowingly and feloniously possess stolen goods which exceeded the aggregate value of thirty-five dollars ($35.00), knowing said goods to be stolen, with the intent to deprive the true owner thereof, and did dispose of same for a valuable consideration, and that said goods possessed are as follows: One 10 horsepower Evinrule outboard motor, Serial No. 10008-02643,--One 10 horsepower Johnson outboard motor, Serial No. 1927540,--One 10 horsepower Evinrude outboard motor, Serial No. 10014-09212,--One 12 horsepower West Bend outboard motor, Serial 1652, Model 12902,--One 2 horsepower West Bend outboard motor, Serial 1983 or 1980 Model 2901,--and against the peace and dignity of the State of Arkansas.'

The information was later amended by striking out the words 'and disposal' from the charge; by correcting and changing the serial number of one of the motors from 100o8-02643 to 100l8-02643; and by adding another outboard motor describing it as follows: 'One 18 horsepower Evinrude Outboard Motor, Serial No. 15024-14804.' A long list of the State's witnesses was also attached to this information at appellant's request.

From the judgment comes this appeal. For reversal appellant contends that the trial court erred in allowing the information to be amended, as indicated above, and in refusing to quash it; that the court erred 'in allowing the trial to proceed after amending the original information by striking the words 'and disposal' without any notice to the Appellant or Appellant's Counsel;' that the court erred in refusing to grant appellant a continuance; and 'by proceeding to trial without the State having first filed a Bill of Particulars as requested by Appellant.' And finally Silas contends that on account of the above alleged errors, he has been deprived of due process of law. We do not agree to any of these contentions.

Appellant, although a barber by trade, dealt in buying and selling many things, among them being automobiles, firearms and outboard marine motors. The evidence appears to be overwhelming that appellant induced several teenage boys to steal outboard motors for him and pursuant to this arrangement, six outboard marine motors were stolen and possession delivered to Silas. Silas paid the boys $300 for four of these motors. The owners of the stolen motors testified as to the ownership and identified them. One of the youths instrumental in stealing them testified that he, along with companions, delivered the stolen goods to Silas during the late hours of night. Serial numbers of the motors stolen corresponded with those in Silas' possession. Numerous advertisements appeared in the local newspaper offering the sale of motors by Silas with horsepower identical with those stolen.

At the outset appellant is confronted with the fact that he did not file a motion for a new trial incorporating his alleged errors. Therefore, under our long established rule, only such errors as may appear on the face of the record will be considered by this court on appeal. In Holliman v. State, 213 Ark. 876, 213 S.W.2d 617, 618, we said: 'There is no motion for a new trial in this record and * * * it is a well-settled rule of this court that where there is no motion for a new trial, only errors appearing on the face of the record will be considered on appeal.' As to what constitutes 'the record', we said in Baker v. Allen, 204 Ark. 818, 164 S.W.2d 1004, 1006: "The record proper includes the Pleadings, any Exhibits thereto, Statement Showing Service of Summons, any material Order of Court preceding judgment, the Judgment itself, Motion for New Trial, the Order Overruling same, and the Grant of Appeal."

The trial court did not err in allowing the State to amend the information by striking out the charge of 'disposal' of stolen goods and thereby eliminating and reducing the charge to the one charge of 'possession' of stolen goods. Obviously the nature and degree of the crime charged [§ 43-1024, Ark.Stats.] was not changed. This change made was clearly to appellant's benefit and he cannot complain. 'The only limitation on such amendment is that it relates to 'matters of form', and not 'change the nature of * * * the degree of the crime charged,'' Ingle and Michael v. State, 211 Ark. 39, 198 S.W.2d 996, 997. In 42 C.J.S. Indictments and Informations § 237, the author says: 'No amendment of the information is necessary in order that the prosecuting attorney may abandon a greater charge and proceed against accused on a lesser one included therein; a simple motion, made verbally in...