Tucker & Peacock v. State

• Decision Date: 27 September 1937
• Docket Number: Crim. 4045
• Citation: 108 S.W.2d 890,194 Ark. 528
• Parties: TUCKER AND PEACOCK v. STATE
• Court: Arkansas Supreme Court

108 S.W.2d 890

194 Ark. 528

TUCKER AND PEACOCK v. STATE

Crim. 4045

Supreme Court of Arkansas

September 27, 1937

Appeal from Drew Circuit Court; D. L. Purkins, Judge; affirmed.

Judgment affirmed.

James Merritt, for appellants.

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

OPINION

MEHAFFY, J.

Appellants were convicted of grand larceny under a charge which alleged the ownership of the property said to have been stolen, in Bailey Jones.

The information filed by the prosecuting attorney is as follows:

"STATE OF ARKANSAS Against Vance Tucker, J. V. Tucker, Neal Peacock. SS. INFORMATION

"I Will J. Irvin, prosecuting attorney for Drew county of the Tenth Judicial Circuit of Arkansas, upon my oath of office, in the name and by the authority of the state of Arkansas, accuse Vance Tucker, J. V. Tucker and Neal Peacock of the crime of grand larceny committed as follows, to-wit: The said Vance Tucker, J. V. Tucker and Neal Peacock 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 to the statutes in such cases made and provided, and against the peace and dignity of the state of Arkansas.

"WILL J. IRVIN,

Prosecuting Attorney.

"January 25, 1937."

The case was dismissed as to J. V. Tucker. The appellants, Vance Tucker and Neal Peacock, pleaded not guilty, and were tried and found guilty by the jury.

Appellants earnestly insist that the evidence does not show that Bailey Jones was the owner of the hogs and that the case should, therefore, be reversed.

Section 3018 of Crawford & Moses' Digest reads: "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."

There can be no doubt but that the information describes the offense with sufficient certainty to identify the act.

This court said in construing the above statute, (which is § 2233 of Kirby's Digest); "Now, in all of the cases on the point heretofore decided by this court the indictment charged ownership by individuals, and there was no other sufficient identification. In the present case, however, there is another description in stating the partnership name, and to that extent the proof conforms to the allegations of the indictment. The only variance is as to the name of one of the partners. If the statute (§ 2233 of Kirby's Digest) has any application at all to larceny and kindred cases, and if any effect at all is to be given to it in such cases, we must hold that it applies, and that, there being a sufficient identification of the property in stating the partnership name, the statute applies and renders the erroneous allegation as to one of the persons injured immaterial. It is true that ordinarily in cases of this kind the rules of criminal pleadings require that the names of partners be given, but, so far as identification of the property is concerned, it is described by naming the partnership and, by operation of the statute, an error as to the individual names of the partners is immaterial." Porter v. State, 123 Ark. 519, 185 S.W. 1090.

Where partners are the owners, neither the fact of the partnership nor the firm name, need be averred. If one of the parties has such a separate possession as gives him a special property, it may be alleged that the ownership is in him alone. Bishop's New Criminal Procedure, vol. 3, pages 1684, 1685.

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.

Bailey Jones testified that these hogs belonged to him. His evidence was corroborated by other witnesses. It is true that, on cross-examination, Jones testified that his uncle had given one of the hogs to Jones' mother, but he also testified that she turned it over to him, and that he bought all the feed for the hogs, paid for it himself, and it appears that he was the head of the family, although his father and mother lived with him, and other relatives, there being ten people in the house. Bailey Jones made all the arrangements for cultivating the land and to get supplies furnished him during the year, and paid for them himself. One of the hogs, it is said, belonged to his brother, who was about 18 years old. Neither his brother nor his mother appeared to have anything to do with managing the place, raising the stock, paying for the feed or for the supplies.

Appellants call attention to and rely on Merritt v. State, 73 Ark. 32, 83 S.W. 330. The court there said: "In this case the proof shows neither sole ownership of W. N. Marshall, nor such separate possession as to give special ownership, and was not sufficient to sustain the allegation of the indictment. The animal, being in the actual possession of neither of the owners, was in the constructive possession of both, and the names of both should have been alleged as owners."

In that case, however, the court does not quote or mention the statute above set out.

The later case of Andrews v. State, 100 Ark. 184, 139 S.W. 1134, does discuss the statute, and among other things says: "'Assuming that this section is applicable to cases like this, an erroneous allegation as to the ownership of the goods stolen can only be cured by describing the alleged offense in other respects with such certainty as to identify the act. There was no such description of the offense in the indictment in this case, and hence this statute did not relieve the state of the necessity of proving that the goods stolen belonged to' the parties named in the indictment."

In the case at bar, however, the offense was described in other respects with such certainty as to identify the act. The information charges that in Drew county in the state of Arkansas, on or about the fifteenth day of December, 1936, the appellants 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.

The offense appears to be described in such a way that there can be no doubt about it.

In the case of Porter v. State, 123 Ark. 519, 185...