Von Tonglin v. State

• Decision Date: 30 September 1940
• Docket Number: 4178
• Parties: VON TONGLIN v. STATE
• Court: Arkansas Supreme Court

143 S.W.2d 185

200 Ark. 1142

VON TONGLIN v. STATE

4178

Supreme Court of Arkansas

September 30, 1940

Appeal from Cleveland Circuit Court; DuVal L. Purkins, Judge reversed.

Judgment reversed.

Maurice L. Reinberger and E. D. Dupree, Jr., for appellant.

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

OPINION

SMITH J.

Appellant was convicted, upon his trial, under an indictment which charged that he had stolen "one cow, the property of Joe Randolph." The undisputed testimony is to the effect that the cow was not the property of Joe Randolph, but was owned by Mrs. F. S. Randolph, his mother. Except only the allegation that the stolen cow was the property of Joe Randolph, there was no allegation tending to identify the offense charged. There was no testimony that Joe Randolph was in the exclusive possession of the cow or had any right to its possession. On the contrary, the testimony was to the effect that the cow in question ran on the range near the home of Mrs. Randolph, which was 18 miles from Joe Randolph's residence.

A reversal of the judgment sentencing appellant to the penitentiary is asked upon the ground that there was a variance between the allegation and the proof of ownership. But, notwithstanding this undisputed fact, an affirmance of the judgment is asked upon the authority of the case of Tucker and Peacock v. State, 194 Ark. 528, 108 S.W.2d 890.

That case involved the larceny of twelve hogs, alleged to be the property of Bailey Jones, who testified that the hogs belonged to him. The trial court refused to instruct the jury to return a verdict of not guilty if Bailey's ownership was not established by the testimony, but gave an instruction telling the jury the allegation of ownership had been established if it were found either that Bailey had title to the hogs or had them in his exclusive possession at the time they were stolen. This was held not to be error under the testimony in that case.

The indictment in this case of Tucker and Peacock v. State, supra,, contained the allegation that the accused had transported the stolen hogs "to the home of Vance Tucker in Drew county," which was a circumstance identifying the larceny charged.

Here, there is no fact or circumstance alleged identifying the larceny except the allegation that the cow in question was the property of Joe Randolph, which the undisputed testimony shows to be untrue.

In the case of Andrews v. State, 100 Ark. 184, 139 S.W. 1134, (cited and quoted from in the Tucker and Peacock case, supra), the indictment, there held sufficient, recited the firm name and style of the partnership which owned the stolen property, but incorrectly alleged the name of one of the partners. The opinion in this Andrews case quoted § 2233, Kirby's Digest (now appearing as § 3840, Pope's Dig.), reading as follows: "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."

Immediately following the quotation (in the Andrews case) of this statute, it was said: "This court has repeatedly held, since the enactment of the Code, that correctly naming the injured party in an indictment for larceny and kindred offenses is essential to the identification of the stolen property, and that the above quoted section has no application where the correct name is not given. Blankenship v. State, 55 Ark. 244, 18 S.W. 54; Merrit v. State, 73 Ark. 32, 83 S.W. 330. In the Blankenship case, supra, where the indictment was for larceny of property alleged to belong to the two individuals named, and the proof showed different initials of one of the parties named, Judge BATTLE, speaking for the court, said: '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.'"

The opinion in this Andrews case proceeded to hold the indictment good, notwithstanding the erroneous allegation of the name of one of the partners, and Chief Justice MCCULLOCH, speaking for the court, said: "If the statute 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."

The opinion in the case of Tucker and Peacock v State, supra, cites and quotes from the opinion in the case of Porter v. State, 123 Ark. 519, 185 S.W. 1090, in...