Spears v. State

• Decision Date: 09 May 1927
• Docket Number: (No. 446.)
• Citation: 294 S.W. 66
• Parties: SPEARS v. STATE.
• Court: Arkansas Supreme Court

294 S.W. 66

SPEARS v. STATE.

(No. 446.)

Supreme Court of Arkansas.

May 9, 1927.

Rehearing Denied May 30, 1927.

Appeal from Circuit Court, Hot Spring County; Thos. E. Toler, Judge.

G. C. Spears was convicted of false pretenses, and he appeals. Affirmed.

D. D. Glover, of Malvern, for appellant.

H. W. Applegate, Atty. Gen., and John L. Carter and Darden Moose, Asst. Attys. Gen., for the State.

McHANEY, J.

Appellant was indicted, tried, convicted and sentenced to one year in the penitentiary on a charge of false pretenses, and from the judgment against him he has appealed to this court.

He has urged for our consideration four errors of the trial court, which are properly set up in the motion for a new trial, which was overruled. The first is that the court erred in overruling his demurrer to the indictment. The first ground of demurrer is that the indictment charged four separate specific offenses, in that it charged that he, as foreman of the Wisconsin-Arkansas Lumber Company, fraudulently entered on his time book that "Joe Morgan, Sam Wiggins, Robert Haymon, and Rufus Williams were in the employ of said Wisconsin-Arkansas Lumber Company, and were entitled to their pay from said company, when in truth and in fact" they were not in the employ of the said company, and not entitled to be paid by it. This assignment of error is not well taken, for the reason that it does not charge four separate offenses, but charges the commission of the crime of false pretense through each of these parties. A conviction could have been had by proof of the offense through either one or all of said parties, but there could have been only one conviction, even though there had been sufficient proof to establish guilt as to each. Separate indictments might have been had as to each, but the pleader chose to put them in one case, and appellant cannot complain.

The next ground of demurrer was that the indictment alleged the name of the company to be the Wisconsin-Arkansas Lumber Company, whereas the true name of said company is the Wisconsin & Arkansas Lumber Company. While this is true, it was simply an error that could not in any way have prejudiced appellant's rights. He had, for many years, been in the employ of the Wisconsin & Arkansas Lumber Company, and knew what company he was charged with defrauding. Section 3014 of C. & M. Digest provides:

"No indictment is insufficient, nor can the trial, judgment or other proceeding thereon be affected by any defect which does not tend to the prejudice of the substantial rights of the defendant on the merits."

The indictment, several times, uses the name of the company as above stated, and concludes by the statement that the false pretenses were made "with the unlawful and felonious intent to then and there cheat and defraud the Wisconsin-Lumber Company," leaving out the word "Arkansas" as it had theretofore been used in the indictment. It is manifest that the omission of the word "Arkansas" after the hyphen, was a mere clerical error, and that the failure of the scrivener to put it in the indictment could not possibly work to the prejudice of appellant's rights. In Hyde & Smith v. State, 168 Ark. 580, 271 S. W. 330, on an indictment for robbery, the indictment left out the word "did" in the clause alleging that "by force and intimidation did take from the person of Sam Blevins," etc. The word "did," as above used, was omitted, and assigned as error. This court said:

"The omission of words in an indictment which would not mislead the accused as to the nature and character of the charge will not vitiate an indictment, as such omissions do not prejudice his substantial rights"—citing State v. Ward, 48 Ark. 36, 2 S. W. 191, 3 Am. St. Rep. 213; Rinehart v. State, 160 Ark. 129, 254 S. W. 351; Jackson v. State, 160 Ark. 198, 254 S. W. 531.

The second ground urged for reversal of this case is that the evidence is not sufficient to sustain the verdict. After a careful consideration of the evidence, we must overrule appellant on this point. However, we deem it proper to say that there is no evidence in the record sufficient to support a conviction on the charge in connection with Joe Morgan or Sam Wiggins, but as to the charge in connection with Rufus Williams and Robert Haymon there is a dispute in the testimony, and, while the testimony is quite meager, we think it was sufficient to go to the jury. Robert Haymon testified that he worked for Mr. Spears at his house and at the farm; that Mr. Spears told him that he wanted him to work for him at the house and the farm, and would allow him straight time at the mill, and that he drew his money at the mill. The time book of appellant showed that he worked for the mill regularly through January to the last of July, in 1925, and the witness testified that he did not think he worked at the mill in 1925, but on cross-examination he may have virtually destroyed the effect of his testimony, but this was a question for the jury.

Andrew Holman testified that he, at the direction of the appellant, cashed a number of identification slips for Rufus Williams given to him by the appellant, and took the money back to the appellant. Appellant denies this. The same...