Silvie v. State

• Decision Date: 15 February 1915
• Docket Number: 180
• Parties: SILVIE v. STATE
• Court: Arkansas Supreme Court

173 S.W. 857

117 Ark. 108

SILVIE v. STATE

No. 180

Supreme Court of Arkansas

February 15, 1915

Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge; reversed.

STATEMENT BY THE COURT.

At the September, 1914, term of the Sebastian Circuit Court, for the Fort Smith district, appellant was indicted for three distinct and separate offenses. One indictment charged him "of the crime of obtaining money under false pretenses committed as follows, towist: The said W. I. Silvie, in the county, district and State aforesaid, on the 18th day of July, 1914, did unlawfully, falsely, fraudulently, and feloniously brain from Ed Haglin $ 53.54, by falsely and feloniously staking to the said Ed Haglin that he (the said W. I. Silvie) had paid to Meister BrothersBracht Company a bill for $ 53.54 for material used in the repair of the hotel of the said Ed Haglin by the said W. I. Silvie, which said statement was false and untrue," etc.

Another indictment charged Silvie "of the crime of embezzlement committed as follows, to wit: The said W. I. Silvie, in the county, district and State aforesaid, on the 18th day of July, 1914, then and there being over the age of sixteen years and being the agent and bailee of Ben Wolf and A1 Pollack, and having then and there in his custody and possession as such agent and bailee as aforesaid, a certain check for $ 86.40 of the value of $ 86.40, the property of the said Ben Wolf and A1 Pollock did convert the same into money amounting to $ 86.40 and unlawfully, fraudulently and feloniously make way with, embezzle and convert to his own use," etc.

Another indictment charged appellant "of the crime of embezzlement committed as follows, to wit: The said W. I Silvie, in the county, district and State aforesaid, on the 18th day of July, 1914, then and there being over the age of sixteen years, and being the agent and bailee of E. H Stevenson, and having then and there in his custody and possession as such agent and bailee as aforesaid, a certain check for $ 116 of the value of $ 116, the property of the said E. H. Stevenson, did convert the same into money amounting to $ 116 and unlawfully, fraudulently and feloniously make way with, embezzle and convert to his own use the said sum of $ 116," etc.

The appellant demurred to each of these indictments. The demurrer was overruled and appellant duly saved his exceptions. The causes were consolidated for the purposes of the trial.

The bill of exceptions recites, "The above entitled cause coming on for trial before the Hon. Daniel Hon, judge presiding, came the State of Arkansas by its prosecuting attorney, Paul Little, and came the defendant by his attorney, G. W. Dodd, and the parties announcing ready for trial, a good and lawful jury was empaneled and sworn to try the issues joined," etc.

At the conclusion of the testimony the appellant asked the court to direct a verdict in his favor, which the court refused.

Appellant was convicted and sentenced to one year imprisonment in the State penitentiary on each of said indictments.

One of the grounds in the motion for a new trial was "that the court erred in consolidating the three indictments against the defendant."

Judgements reversed and causes remanded.

Sam R. Chew, for appellant.

1. The indictments did not contain a sufficient description of the money. The demurrers for embezzlement should have been sustained. 51 Ark. 112; 42 Id. 517; 51 Id. 119; 65 Id. 82; 71 Id. 415; 80 Id. 495.

2. Ownership of the property is an essential element and must be averred. 97 Ark. 1; 97 Id. 92; 102 Id. 627; 73 Id. 32.

3. There is no proof of agency or that appellant was a bailee. 51 Ark. 119.

4. The offense of false pretense is statutory. Kirby's Dig § 1689. There must be the intent and design to defraud, and both must be averred in the indictment. A variance between the averment of ownership and the proof is fatal. 97 Ark. 1; 99 Id. 121; 73 Id. 32; 55 Id. 244; 85 Id. 499; 37 Id. 443; Ib. 445; 60 Id. 141.

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

We confess error in the consolidation of the causes. 80 Ark. 495. Nor is the description sufficient. 109 Ark. 411. The judgment should be reversed and the cause remanded. 108 Ark. 224.

OPINION

WOOD, J., (after stating the facts).

The Attorney General confesses that the court erred in consolidating the causes for trial. This court, in McClellan v. State, 32 Ark. 609, and in Halley v. State, 108 Ark. 224, 158 S.W. 121, has criti-sized and condemned the practice of consolidating separate causes under separate indictments for the purpose of trial. In the latter case we said: "While the court would have no authority against the objection, on of the defendant to try the cases together, yet as as the record affirmatively shows the defendant expressly consented to it, and inasmuch as the record does not show he was prejudiced thereby, he can not near be heard to complain of the action of the court which was superinduced by him."

Here, while the record does not show the affirmative consent of the appellant to the consolidation, or that he requested the same, neither does it show that he objected to such procedure. Being present and not objecting, he must be held to have waived the irregularity, and since the record does not disclose that he was prejudiced thereby, he is in no attitude to complain.

The Attorney General also) confesses that the court erred in overruling the demurrers to the indictment for embezzlement for the reason that there was no sufficient description of the money alleged to have been embezzled. This confession of error is well taken. The indictments, it will be observed, did not charge embezzlement of the checks, but, after charging the conversion of the checks into money, they alleged that he "did unlawfully, fraudulently and feloniously make way with, embezzle and convert to his own...