{ "id": 1444206, "name": "Tate v. State", "name_abbreviation": "Tate v. State", "decision_date": "1942-06-08", "docket_number": "4261", "first_page": "470", "last_page": "476", "citations": [ { "type": "official", "cite": "204 Ark. 470" }, { "type": "parallel", "cite": "163 S.W.2d 150" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "102 S. W. 2d 82", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "193 Ark. 648", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1411190 ], "opinion_index": 0, "case_paths": [ "/ark/193/0648-01" ] }, { "cite": "258 S. W. 995", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "162 Ark. 530", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1385525 ], "opinion_index": 0, "case_paths": [ "/ark/162/0530-01" ] }, { "cite": "108 S. W. 2d 497", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "194 Ark. 272", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720210 ], "opinion_index": 0, "case_paths": [ "/ark/194/0272-01" ] }, { "cite": "199 Ark. 900", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1456577 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/199/0900-01" ] }, { "cite": "202 Ark. 936", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1449844 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/202/0936-01" ] }, { "cite": "106 S. W. 2d 1010", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "194 Ark. 264", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720155 ], "opinion_index": 0, "case_paths": [ "/ark/194/0264-01" ] }, { "cite": "107 S. W. 2d 526", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "194 Ark. 1155", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "103 S. W. 2d 50", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "193 Ark. 765", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1411189 ], "opinion_index": 0, "case_paths": [ "/ark/193/0765-01" ] }, { "cite": "89 S. W. 2d 732", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "191 Ark. 1070", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1418661 ], "opinion_index": 0, "case_paths": [ "/ark/191/1070-01" ] }, { "cite": "30 S. W. 2d 865", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "182 Ark. 74", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1390031 ], "opinion_index": 0, "case_paths": [ "/ark/182/0074-01" ] }, { "cite": "197 Ark. 1016", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725197 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/197/1016-01" ] }, { "cite": "112 S. W. 2d 976", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "195 Ark. 477", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721844 ], "opinion_index": 0, "case_paths": [ "/ark/195/0477-01" ] }, { "cite": "108 S. W. 2d 890", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "194 Ark. 528", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722479 ], "opinion_index": 0, "case_paths": [ "/ark/194/0528-01" ] }, { "cite": "197 Ark. 250", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719513 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/197/0250-01" ] }, { "cite": "222 S. W. 721", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "144 Ark. 429", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1587948 ], "opinion_index": 1, "case_paths": [ "/ark/144/0429-01" ] }, { "cite": "202 Ark. 936", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1449844 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/202/0936-01" ] } ], "analysis": { "cardinality": 638, "char_count": 11645, "ocr_confidence": 0.486, "pagerank": { "raw": 1.3693094153824991e-07, "percentile": 0.6379696268006358 }, "sha256": "25b07940d22f6494001abc0d3c352358f24897498b6df6772d90b8f25380c266", "simhash": "1:050de55264cfd2bb", "word_count": 2052 }, "last_updated": "2023-07-14T21:22:22.082665+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Tate v. State." ], "opinions": [ { "text": "Holt, J.\nOn 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.\n1.\nThe information, among other things, charges that \u201cThe 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.\u201d\nThe record reflects that when the first state witness, Bob Stephens, was introduced, the prosecuting- attorney made the following statement to the court: \u201cIf 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. \u2019 \u2019\nOver appellant\u2019s objection, to which proper exceptions were preserved, the state was permitted to amend the information by inserting after the name \u201cBob Stephens,\u201d S. E. Thompson & Son in parentheses. It is our view that no error results from this action of the court for the following reasons:\nSection 3840 of Pope\u2019s Digest (formerly \u00a7 3018 of Crawford & Moses\u2019 Digest) provides: \u201cWhere 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. \u2019 \u2019\nIn 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 B\u00e1ffle as that in the instant C\u00e1se, In th\u00e9 Tucker Case, it Was alleged in the information, among\u2019 other things* that the \u201csaid 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;\n^T-k\u00e9rO can 'be no doubt but that the information do'sbrikos 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 orrr statute provides, where the of-feUsU kS described in other respects with sufficient oer%\u00e1My 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 3023, Crawford & Moses\u2019 Digest.\n\"Section 3014 of Crawford & Moses\u2019 Digest (now \u00a7 3836 of Pope\u2019s Digest) is as follows: 'No indictment is insufficient, nor can the trial, judgment or other proceeding\u2019 thereon be affected by any defect which does not tend to the prejudice of the substantial rights of the defendant on the merits. \u2019\n\u201cEven if it were necessary to name the owner of the properly, under \u00a7 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. \u2019 \u2019\nHere we think the information describes the offense of grand largency with sufficient certainty to identify tlie act and an erroneous allegation as to the true owner of the property is not material and does not constitute error.\nIt 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.\nStill another reason why no error was committed is that \u00a7 24 of Initiated Act 3, adopted at the General Election November 3, 1936 (now \u00a7 3853 of Pope\u2019s Digest) permits the amendment of indictments or informations. The only limitation on such amendment is that it relate, to \u201cmatters of form,\u201d and not \u201cchange the nature or the degree of the crime charged. \u2019 \u2019\nWe 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.\nIn Brewer v. State, 195 Ark. 477, 112 S. W. 2d 976, this court in construing the effect of \u00a7 3853 of Pope\u2019s Digest, said: \u201c. . . 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 tlie 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.\u201d See, also, Johnson v. State, 197 Ark. 1016, 126 S. W. 2d 289.\no\nIn 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 1010.\nThe 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, \u00a7 4017, Pope\u2019s Digest, corroboration of the testimony of Clyde Hale. ,\nIn 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: \u201c. ' . . 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.\u201d 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. 995; Mullen v. State, 193 Ark. 648, 102 S. W. 2d 82.\nGuided by this rule, it is our view that there is sufficient testimony corroborating the accomplice Hale to sustain the verdict.\nClyde Hale testified that he had known William Tate, appellant, for about ten months; that on the night of January 5, 1942, he and appellant went to a sawmill south of Garner, operated by Bob Stephens, and stole the property in question; that they transported the property in a Ford V-8 truck, which belonged'to John White, and drove to White\u2019s home after the theft and put the stolen property in White\u2019s attic; that on the way back from Garner, he and appellant stopped in Beebe and got a cup of coffee and cigarettes at a restaurant; that while in the restaurant, he secured some paper from the restaurant owner with which he defrosted the windshield of the truck by holding the burning paper against the windshield. \u25a0\nR. M. Pennoch testified that on the night of the' theft in question two men- stopped at his restaurant in Beebe between nine and ten o\u2019clock; they bought some coffee and cigarettes and that one of them got a piece of paper to defrost his windshield. On being asked to identify appellant at the trial,- the witness testified that the man with the accomplice, Clyde.,Hale, had on an officer\u2019s cap and a leather jacket. When appellant was asked to stand lip for identification, Pennoch testified: \u201cI didn\u2019t pay much attention to the man that was sitting down, I wouldn\u2019t like to swear that was the man, but he was dressed similar to that man. . . . He looked a whole lot like him.\u201d He further testified that the accomplice lighted the paper with a match and held it up to the windshield.\nS. Y. Turnage, deputy sheriff of White county, testified that he examined the footprints at the mill; that there \"were two sets of tracks, one fitted shoes like those worn b}r the accomplice and the other tracks were sharp pointed and smaller. He also testified that he procured shoes similar to those worn by the accomplice from the store where the accomplice had recently bought shoes, and that they fitted one set of the tracks, and that the smaller tracks resembled those made by the shoes that appellant was wearing.\nTom Pickard testified that appellant told him that he wanted to talk to the accomplice Hale and that in his presence \u201che (appellant) told Hale he would be back in the morning and see the prosecuting attorney and clear it up and I asked him if he knew all about it and he said he did, he said he was going to clear it all up.\u201d That appellant further said \u201cWe were down there, but what we want to get is the fellow that sent us down there.\u201d They said \u201cHe will be looking out these bars before sundown tomorrow night\u201d; that appellant called the name \u201cWhite.\u201d\nSheriff James A. Neavilles, Jr., testified that he went down to the mill and checked the tracks and that the smaller track had a leather heel and a sharp pointed toe; that when appellant was arrested in Little Rock he had on sharp pointed shoes with leather heels and that he wo\\dd say the shoes compared identically with the tracks at the mill. There is other evidence that the ground was covered with an inch of snow at the time.\nIt is our view that this testimony sufficiently corroborates the testimony of the accomplice Hale to connect appellant with the crime charged. Accordingly the judgment is affirmed.", "type": "majority", "author": "Holt, J." }, { "text": "Grieein Smith, O. J.,\n(concurring). No prejudice resulted from the court\u2019s ruling that the information might be amended. If, however, it is the majority\u2019s intention to say that substitution of one name for another in any case would not be error, I think that holding would be wrong. If it should be alleged that A, of Pulaski county, stole a cow belonging to B, of Sebastian county, when in fact the animal had been purloined from 0, of Union county, and the defendant in good faith had prepared to defend the original charge, it would not require the marshalling* of logic to convince one that rights had been impaired by permitting a different owner to be named and denying time to meet the new issue.\nIn quoting from McDougal v. State, 202 Ark. 936, 154 S. W. 2d 810, the statement is repeated that \u201c. . . sufficiency of the corroborating evidence is also a question for the jury.\u201d Credibility of witnesses whose testimony corroborates an accomplice is for the jury, but such evidence must be substantial, and substantiality is a matter of law. Murphy v. Murphy, 144 Ark. 429, 222 S. W. 721; Missouri Pacific Transportation Company v. Bell, 197 Ark. 250, 122 S. W. 2d 958.", "type": "concurrence", "author": "Grieein Smith, O. J.," } ], "attorneys": [ "Ralph Morrow, for appellant.", "Jack Holt, Attorney General and Jno. P. St'reepey, Assistant Attorney General, for appellee." ], "corrections": "", "head_matter": "Tate v. State.\n4261\n163 S. W. 2d 150\nOpinion delivered June 8, 1942.\nRalph Morrow, for appellant.\nJack Holt, Attorney General and Jno. P. St'reepey, Assistant Attorney General, for appellee." }, "file_name": "0470-01", "first_page_order": 488, "last_page_order": 494 }