Underwood v. State

• Decision Date: 17 May 1943
• Docket Number: 4300
• Citation: 171 S.W.2d 304,205 Ark. 864
• Parties: UNDERWOOD v. STATE
• Court: Arkansas Supreme Court

171 S.W.2d 304

205 Ark. 864

UNDERWOOD v. STATE

4300

Supreme Court of Arkansas

May 17, 1943

Appeal from Crawford Circuit Court; J. O. Kincannon, Judge reversed.

Judgment reversed and cause remanded.

Fines F. Batchelor, Howell & Howell and Partain, Agee & Partain for appellant.

Guy E Williams, Attorney General and Earl N. Williams, Assistant Attorney General, for appellee.

OPINION

KNOX, J.

Information was filed in the Crawford circuit court accusing appellant and one Artis Moore of the crimes of "Burglary and Grand Larceny." Appearing as a witness for the State, Moore confessed his own guilt, and testified to facts incriminating appellant.

Appellant was acquitted of burglary, but convicted of grand larceny, and his punishment was fixed at one year in the penitentiary.

Numerous errors were assigned in the motion for new trial, several of which are urged here as grounds for reversal. Among the assignments of error are two which well may be considered together. They are first that the court erred in overruling appellant's demurrer to the information, and second that the court erred in permitting the prosecuting attorney to amend the information during the progress of the trial.

As before stated, the information defined the crimes with which appellant and Moore were charged as "Burglary and Grand Larceny." By way of amplification the information further alleged in substance that appellant and Moore entered into a conspiracy by which it was agreed that Moore should break into Ward's Van Buren Ice Company building and steal therefrom some automobile tires and deliver the same to appellant, who agreed to pay five dollars each therefor; that in furtherance of such conspiracy Moore did break and enter said building and steal four tires, which he delivered to appellant, and appellant paid him part of the money so agreed to be paid, promising to pay the balance later.

Appellant filed a demurrer alleging that the information did not state facts sufficient to constitute an offense, which demurrer was overruled.

During the trial the State undertook to prove the value of the tires. Appellant at the time objected on the ground that the value had not been alleged in the information. Whereupon the court, over appellant's objection, permitted the State to amend the information, so as to allege that the tires so stolen were of the value of forty dollars.

Appellant contends that the information was fatally defective in that it failed to allege the value of the property stolen. He further contends that the court erred in permitting the State to amend in that particular, because he contends such amendment went to a matter of substance and not of form, particularly so since in that part of the information setting out in detail the acts which it is alleged constituted the offense it is stated that appellant and Moore entered into a conspiracy, and under the statutes a conspiracy to commit a crime is a misdemeanor and not a felony. Pope's Digest 3572.

Prior to the adoption of Initiated Act No. 3 of 1936, (Acts 1937 p. 1384) there would have been much merit in appellant's contention. That act was adopted by the people, however, for the very purpose of simplifying procedure in criminal cases, and eliminating some of the technical defenses by means of which criminals had often in the past escaped punishment for their crimes.

Section 22 of that Act, now 3851 of Pope's Digest, reads as follows: "The language of the indictment must be certain as to the title of the prosecution, the name of the court in which the indictment is presented, and the name of the parties. It shall not be necessary to include statement of the act or acts constituting the offense, unless the offense cannot be charged without doing so. Nor shall it be necessary to allege that the act or acts constituting the offense were done wilfully, unlawfully, feloniously, maliciously, deliberately or with premeditation, but the name of the offense charged in the indictment shall carry with it all such allegations. The State, upon request of the defendant, shall file a bill of particulars, setting out the act or acts upon which it relies for conviction."

Section 23 of that Act, now § 3852 of Pope's Digest, contains a suggested form for an indictment for murder, which prior to the adoption of such Act would have been fatally defective under the authority of many decisions of this court.

Section 24 of said Act, now § 3853 of Pope's Digest, reads as follows: "The prosecuting attorney or other attorney representing the State, with leave of the court may amend an indictment, as to matters of form, or may file a bill of particulars. But no indictment shall be amended, nor bill of particulars filed, so as to change the nature of the crime charged or the degree of the crime charged. All amendments and bills of particulars shall be noted of record."

In view of the provisions of § 22 of Act No. 3, (Acts 1937 p. 1384), it is doubtful whether it is now necessary in an indictment or information which specifically defines the crime charged as being grand larceny to allege the value of the property stolen. While the term grand larceny is not defined by statute, (§ 3134 of Pope's Digest merely providing different punishment in cases where the value of the property stolen is more or less than ten dollars), this court has declared that the stealing of property of the value of more than ten dollars constitutes the crime of grand larceny. Crossland v. State, 77 Ark. 544, 92 S.W. 776; McCarthy v. State, 90 Ark. 384, 119 S.W. 647. So designating the offense by name as grand larceny is probably sufficient allegation that the value of such property exceeds the sum of ten dollars.

That the value of the property here stolen exceeded the sum of ten dollars is in fact inferentially alleged in the information, since it is alleged that four tires were stolen, and that appellant agreed to pay the sum of five dollars for each tire.

Assuming, without deciding, however, that the information as originally filed was defective, this defect was cured by the amendment, which we hold the court properly permitted the prosecuting attorney to make. It is well settled by the decisions of this court that under the provisions of § 3853 of Pope's Digest, above quoted, the attorney representing the State, with leave of the trial court, may amend an indictment or information, provided such amendment does not have the effect of changing the nature of the crime charged or the degree thereof. Collins v. State, 200 Ark. 1027, 143 S.W.2d 1; Johnson v. State, 197 Ark. 1016, 126 S.W.2d 289; Brewer v. State, 195 Ark. 477, 112 S.W.2d 976.

It is true that under the provisions of that section such amendments are limited to matters of form, but this section must be read in connection with §§ 3851 and 3852 of Pope's Digest, which make the distinction between form and substance much different than that which existed between the two under opinions of this court delivered prior to the adoption of such act.

Another alleged error is that the testimony of Moore who admittedly is an accomplice is not sufficiently corroborated. Moore testified that on the morning before the crime was committed he went to see defendant who, with his brother, operates a taxicab business seeking to borrow fifty cents, that as he was leaving defendant asked him if witness knew where defendant could get any tires, and upon witness replying that he did not, defendant advised witness that he would give him five dollars apiece for all he could get. Witness testified further that about eleven o'clock that night he broke into the ice plant and stole four tires and hid them behind the cooling tower; that he then went over to the Missouri Pacific freight depot and called defendant's place of business. On the first call he learned the defendant was not there. He waited a few minutes and called again and Roy Hanson, one of defendant's employees, answered the phone, and witness told Hanson that he had the stuff down there and to come and get it, and shortly thereafter defendant drove down in his car, and witness and defendant proceeded to load the tires into defendant's car, whereupon witness and defendant drove together to the cab company garage, entering through the rear door, where witness and defendant proceeded to take three of the tires off of defendant's car and replace them with three of the stolen tires; that while they were changing the tires someone came into the front of the building, and defendant went up to meet such person, and witness got behind the car and began putting air into one of the tires; that when they had finished defendant paid witness fifteen dollars and promised to pay the balance later; then defendant's brother, who was a partner in the business, took the witness home; that witness did not have a watch and could not exactly fix the time when he and defendant were changing the tires, but he thought it was about twelve o'clock.

The following evidence is relied on by the State as constituting sufficient corroboration to support the conviction. There was evidence that (1) defendant's tires were in bad state of repair (2) defendant and Moore were friendly as disclosed by the facts that defendant and his brother extended to witness a small line of credit amounting to one dollar per week, that defendant had previously executed a bond for witness and had also indorsed his note for the sum of twenty dollars, (3) that witness was in defendant's place of business the morning before the crime was committed, and did in fact talk to defendant, (4) two witnesses employed at the Missouri Pacific freight house testified that witness, about eleven o'clock of the night of the robbery did call defendant's place of business by means...