Tate v. State

• Court: Arkansas Supreme Court
• Writing for the Court: HOLT, J.
• Citation: Tate v. State, 163 S.W.2d 150, 204 Ark. 470 (Ark. 1942)
• Decision Date: 08 June 1942
• Docket Number: 4261
• Parties: TATE v. STATE

163 S.W.2d 150

204 Ark. 470

TATE v. STATE

4261

Supreme Court of Arkansas

June 8, 1942

Appeal from White Circuit Court; E. M. Pipkin, Judge; affirmed.

Judgment affirmed.

Ralph Morrow, for appellant.

Jack Holt, Attorney General and Jno. P. Streepey, Assistant Attorney General, for appellee.

HOLT J. GRIFFIN SMITH, C. J., concurring.

OPINION

HOLT J.

On an information charging grand larceny, appellant, William Tate was tried and convicted, and his punishment assessed at one year in the state penitentiary. For reversal two errors are assigned: (1) that the trial court erred in permitting the prosecuting attorney, over the objections and exceptions of appellant, to amend the information; (2) that the evidence is not sufficient to support the verdict.

1.

The information, among other things, charges that "The said William Tate in the county and state aforesaid, on the 5th day of January, A. D., 1942, unlawfully and feloniously did take, steal and carry away one hundred and twenty-five feet of belting, of the value of fifty dollars, and one blow torch, of the value of five dollars, the property of Bob Stephens (S.E. Thompson & Son) against the peace and dignity of the State of Arkansas."

The record reflects that when the first state witness, Bob Stephens, was introduced, the prosecuting attorney made the following statement to the court: "If the court please, the information charges that this was the property of Bob Stephens. I find that Mr. Bob Stephens was in possession of the property, but the title was not in him, it was in S.E. Thompson & Son, and I ask to amend the information to that extent."

Over appellant's objection, to which proper exceptions were preserved, the state was permitted to amend the information by inserting after the name "Bob Stephens," S.E. Thompson & Son in parentheses. It is our view that no error results from this action of the court for the following reasons:

Section 3840 of Pope's Digest (formerly § 3018 of Crawford & Moses' Digest) provides: "Where an offense involves the commission, or an attempt to commit, an injury to person or property, and is described in other respects with sufficient certainty to identify the act, an erroneous allegation as to the person injured, or attempted to be injured, is not material."

In construing this section of the statute in Tucker and Peacock v. State, 194 Ark. 528, 108 S.W.2d 890, this court had under consideration an information in effect the same as that in the instant case. In the Tucker case, it was alleged in the information, among other things, that the "said Vance Tucker . . . in the county of Drew, and state of Arkansas on or about the 15th day of December, A. D., 1936, did then and there take, steal and carry away twelve hogs, the property of Bailey Jones in Lincoln county and transported same to the home of Vance Tucker in Drew county, contrary, etc., . . ." There this court said:

"There can be no doubt but that the information describes the offense with sufficient certainty to identify the act. . . . The purpose of requiring the owner of the property to be named is for the protection of the defendant. But as our statute provides, where the offense is described in other respects with sufficient certainty to identify the act, an erroneous allegation as to the ownership of the property is not material. . . . The offense appears to be described in such a way that there can be no doubt about it. . . . The information is sufficient if it can be understood therefrom that the act charged as the offense is stated with such a degree of certainty as to enable the court to pronounce judgment on conviction, according to the right of the case. Section 3013, Crawford & Moses' Digest.

"Section 3014 of Crawford & Moses' Digest (now § 3836 of Pope's Digest) is as follows: '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.'

"Even if it were necessary to name the owner of the property, under § 3018 above quoted, still no substantial rights of the appellant are affected. The owner, however, even when it is necessary to prove ownership, need not have the legal title; but if he had exclusive possession and control of the property, it may be alleged that he is the owner."

Here we think the information describes the offense of grand larceny with sufficient certainty to identify the act and an erroneous allegation as to the true owner of the property is not material and does not constitute error.

It is also undisputed in the instant case that Bob Stephens as the superintendent of the sawmill in question was in possession and control of the property at the time it was stolen, and, as pointed out in the Tucker case, supra, it was not error to allege in the information that he was the owner.

Still another reason why no error was committed is that § 24 of Initiated Act 3, adopted at the General Election November 3, 1936 (now § 3853 of Pope's Digest) permits the amendment of indictments or informations. The only limitation on such amendment is that it relate to "matters of form, " and not "change the nature or the degree of the crime charged."

We think it clear that the amendment allowed by the court here did not have the effect of changing the nature of the crime or the degree thereof and that no error was committed in permitting the amendment.

In Brewer v. State, 195 Ark. 477, 112 S.W.2d 976, this court in construing the effect of § 3853 of Pope's Digest, said: ". . . So, it will be seen that an indictment may be amended under this section with leave of the court provided it does not change the nature of the crime or the degree thereof. The amendment did not have the effect of changing the nature of the crime or the degree thereof. So the court properly permitted the amendment." See, also, Johnson v. State, 197 Ark. 1016, 126 S.W.2d 289.

2.

In testing the legal sufficiency of the evidence to support the verdict, it must be viewed in the light most favorable to the state. Turnage v. State, 182 Ark. 74, 30 S.W.2d 865; Clayton v. State, 191 Ark. 1070, 89 S.W.2d 732; Slinkard v. State, 193 Ark. 765, 103 S.W.2d 50; Combs v. State, 194 Ark. 1155, 107 S.W.2d 526; Smith v. State, 194 Ark. 264, 106 S.W.2d 1019.

The record reflects that the state relied largely for conviction upon the testimony of Clyde Hale, an accomplice. Before the conviction of appellant, therefore, may be allowed to stand, there must be under our statute, § 4017, Pope's Digest, corroboration of the testimony of Clyde Hale.

In considering the effect of this section of the statute this court in the recent case of McDougal v State, 202 Ark. 936, 154 S.W.2d 810, said: ". . . the rule is . . . well established that the corroborating testimony need only be sufficient to connect the defendant with the commission of the crime and need not be sufficient, standing alone, to convict. The sufficiency of the corroborating evidence is also a question for the jury." See, also, Smith v. State, 199 Ark. 900, 136 S.W.2d 673; Shaw v. State, 194 Ark. 272, 108 S.W.2d 497; Middleton v. State, 162 Ark. 530, 258 S.W....