{ "id": 1488187, "name": "Bowen v. State", "name_abbreviation": "Bowen v. State", "decision_date": "1943-03-01", "docket_number": "4286", "first_page": "380", "last_page": "385", "citations": [ { "type": "official", "cite": "205 Ark. 380" }, { "type": "parallel", "cite": "168 S.W.2d 836" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "76 S. W. 1059", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "71 Ark. 577", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1507771 ], "opinion_index": 0, "case_paths": [ "/ark/71/0577-01" ] }, { "cite": "178 S. W. 914", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "119 Ark. 152", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718273 ], "opinion_index": 0, "case_paths": [ "/ark/119/0152-01" ] }, { "cite": "181 S. W. 890", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "121 Ark. 322", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1559364 ], "opinion_index": 0, "case_paths": [ "/ark/121/0322-01" ] }, { "cite": "220 S. W. 308", "category": "reporters:state_regional", "reporter": "S.W.", "weight": 2, "opinion_index": 0 }, { "cite": "143 Ark. 158", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1589457 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/143/0158-01" ] }, { "cite": "275 S. W. 663", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "169 Ark. 340", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1374000 ], "opinion_index": 0, "case_paths": [ "/ark/169/0340-01" ] } ], "analysis": { "cardinality": 638, "char_count": 11103, "ocr_confidence": 0.526, "pagerank": { "raw": 7.943004060014475e-08, "percentile": 0.4623111231581455 }, "sha256": "09922d3e99db579f3d8f0ecfabac431a38843c36b8a778440c7ba51a038f95cb", "simhash": "1:8f56d837522c1d8f", "word_count": 1888 }, "last_updated": "2023-07-14T20:00:03.571044+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Bowen v. State." ], "opinions": [ { "text": "Griffin Smith, C. J.\nAppellant was charged with breaking into the home of Grover Nance in Newport for the purpose of stealing. The crime was alleged to have occurred \u201c. . . the fourth day of July, 19342. \u201d\nWhen the State closed, 'Bowen\u2019s attorney moved to dismiss on the ground that evidence varied from the indictment in that conduct complained of was shown to have occurred July 4, 1942, instead of July 4, \u201c19342.\u201d From an adverse ruling appellant saved exceptions. Defense was that the accused, because of drunkenness, did not remember the transaction, and if the home was entered the act was without conscious accord.\nInstruction No. 5 was intended t\u00f3 give appellant the benefit of his plea of drunkenness. After Instructions Nos. 6 and 7 had been given, appellant\u2019s attorney said: \u201cI want an instruction that if [Bowen] was drunk and didn\u2019t know what he was doing \u2014 I want an instruction about that.\u201d Whereupon Instruction No. 8 was given, as follows:\n\u201cDrunkenness . . . is no defense . . . unless [the accused]' was so drunk as to cause him to labor under such defect of reasoning that he would not know the nature of the act he was doing, and if he did know, he was ignorant that it was wrong; and if he did it, he was so drunk he couldn\u2019t keep from carrying it out anyway. That is just how drunk he would have to be. \u2019 \u2019 There was no objection.\nin his motion for a new trial appellant insists it was error to instruct that drunkenness was no excuse for commission of the\u2019crime, \u201c. . . and then [for the court to] instructed the jury to the contrary.\u201d It is said in the motion for a new trial that the instruction in the manner given, \u201cwas prejudicial to defendant\u2019s rights. If said instruction had not been given in such manner the defendant\u2019s rights might have .been different, and the defendant might have been acquitted.\u201d\nAppellant\u2019s defense was appropriately presented in Instruction No. 5, effect of which was to tell the jury that if Bowen, either through mistake or because he was too drunk t\u00f3 form an intent, entered the Nance home, he should be acquitted. Appellant desired a more discriminating and comprehensive statement of the law; and so, in effect, the jury was told by Instruction No. 8 that drunkenness was no excuse unless the degree of intoxication deprived appellant of his power to comprehend the nature of his conduct, or, if conscious of the act complained of, still if appellant, because of alcoholic stupor, did not know what he did was wrong, criminal liability would not attach. In other words, before drunkenness could be interposed as a legal shield the-mental status produced by whiskey must have controlled physical volition.\nThe instructions were certainly as favorable as appellant was entitled to, even more so; but, if appellant\u2019s attorney believed there was conflict, or that Instruction No. 8 given at his request required clarification, the court\u2019s attention should have been called to what was thought to be disharmony between Instruction No. 5 and Instruction No. 8, and any error in the declaration given at appellant\u2019s request ought to have been pointed out.\nTrial was had September 23, with verdict, judgment, and motion for new trial the same day; also the order overruling the motion for new trial was made September 23.\nOnly errors brought forward in the motion for .a new trial were that the verdict was contrary to law, contrary to the evidence, contrary to the -law and evidence; that the motion to dismiss should have been sustained because the indictment charged commission of the crime in 19342; also, that the instructions on drunkenness were \u201cgiven in a manner prejudicial to the defendant\u2019s rights. \u201d\nOctober 7 motion in arrest of judgment was filed. It alleged that because the defendant was a Negro his constitutional rights had been invaded in that the indictment was returned by an all-white grand jury and conviction was by a petit jury composed entirely of white persons. Further allegations were that Jackson county contained a large Negro population; and, although members of that race competent to serve on juries were known to jury commissioners, Negroes had been consistently excluded because of racial prejudice.\nA second assignment is that in selecting the jury appellant was denied full number of peremptory challenges. There is the statement that . . the court ruled he was entitled to only seven challenges, when the defendant claims he was entitled to more in such felony cases.\u201d Contention was that appellant \u201c. . . asked a ruling on the number' when saving his exceptions, and the court so far has refused to, pass on the matter except by denying him further challenges after seven.\u201d\nAlthough the motion in arrest of judgment shows it was filed October 7, indorsement on the order overruling it is dated September 23. By certiorari the court\u2019s docket sheet was brought up. It shows that the motion in arrest of judgment was filed October 7 \u201c[and] overruled.\u201d The writ of certiorari is dated December 14. December 31 the court heard appellant on his motion to correct the judgment. The order was adverse to the several contentions \u201c. . . because the record fails to show [the matters alleged to have transpired], and no evidence [was] introduced to show [such alleged transactions], and further, the records seem to show all matters were properly recorded ... in the transcript. \u2019 \u2019\nAppellant\u2019s motion to correct the record recites that he was convicted of burglary \u201c. . . on the 22d day of May.\u201d The court apparently treated the motion as relating to the trial of September 23. The petition to this court for certiorari alleges that appellant was convicted September 22. These discrepancies are unimportant.\nThe only ground upon which a judgment may be arrested is that facts stated in the indictment or information do not constitute a public offense within the jurisdiction of the court. Pope\u2019s Digest, \u00a7 4064. Lewis v. State, 169 Ark. 340, 275 S. W. 663; Hicks v. State, 143 Ark. 158, 220 S. W. 308. Other cases are to the same effect. '\nThat \u201c19342\u201d was erroneously written into the indictment for 1942 is so obviously a typist\u2019s mistake that no one could possibly be deceived by it. Of course appellant does not contend he prepared to defend a crime supposed to have been committed 17,400 years beyond July 4, 1942. Before going to trial the accused had a right to ask when the crime was perpetrated. Instead, he announced ready. Nor, can a defendant take chances on being acquitted by a white jury and, if disappointed, claim that constitutional guarantees have been abridged. The same reasoning applies to the indictment. Appellant elected to stand trial without asserting the right he now seeks. Similar contentions were made in Hicks v. State, 143 Ark. 158, 220 S. W. 308. It was held that the objection, first brought to the court\u2019s attention when motion for a new trial was presented, came too late. In the instant case, as has been shown, the objection was not mentioned until the motion in arrest of judgment was filed two weeks after sentence. See Tillman v. State, 121 Ark. 322, 181 S. W. 890.\nThere is nothing in the record sustaining appellant\u2019s contention that he was not permitted to peremptorily challenge eight veniremen. (Initiated Act No. 3, 1936, \u00a7 18. Pope\u2019s Digest, \u00a7 3998). Appellant has not brought himself within the provisions of \u00a7 3547 of Pope\u2019s Digest which authorizes a bystanders\u2019 bill of exceptions; and this is true even if we assume (for the purpose of this discussion only) that appellant\u2019s motion to correct the record so that it would show his exceptions to the court\u2019s ruling limiting the number of peremptory challenges to seven was in proper form. Methods by which the rights here contended for may be preserved are set out in Pearson v. State, 119 Ark. 152, 178 S. W. 914. See comment at pages 158-159 of the Arkansas Report, page 917, South Western Reporter.\nAt most appellant\u2019s undated motion to correct the record was only an allegation that the bill of exceptions was incomplete. The matter counsel insists the stenographer omitted was counsel\u2019s exception to the court\u2019s refusal to permit the requisite number of peremptory challenges. When the court did not agree with appellant\u2019s contention, the fact (if it be such) that the exception was saved should have been shown through'a bystanders\u2019 bill of exceptions. See Boone v. Goodlett & Co., 71 Ark. 577, 76 S. W. 1059.\nAffirmed.\nCircumstances attending the crime are substantially these: Appellant\u2019s presence in the Nance home was discovered by Billy, a young son of Grover Nance. The lad carried a morning newspaper route. He slept with an older brother, Gus. While trying to go -to sleep Billy saw what he thought were flashes from matches being struck in another room where his mother and a young sister slept. Closer observation convinced him that someone was using a flashlight, switching it on and off. Billy \u201cnudged\u201d Gus, who seems to have been a powerful man. Gus had previously heard a \u201cracket\u201d near the back door, but thought little of it. After Billy had whispered that he thought a flashlight was being used, Gus rushed into his mother\u2019s room. He testified that Bowen (whom he did not then know) was standing over the bed occupied by his mother and sister. The surprised intruder ran, but was caught by Gus, who, with the aid of his father and Billy, succeeded in detaining appellant until officers arrived. In the Negro\u2019s pocket a skeleton key was found, also a large nail. Near where the scuffle with Gus occurred a \u201ccase\u201d knife was found. Before entering the house appellant removed his shoes and left them on the steps.\nThe fact of former conviction was brought out by appellant on direct examination. On cross examination he admitted that in 1923 he entered a plea of guilty at Caruthersville, Mo., the charge being grand larceny and burglary. A plea of guilty to burglary and grand larceny was entered at Poplar Bluff, Mo., in 1924. In 1928 he again pleaded guilty to burglary and grand larceny, and in 1931 a plea of guilty was entered at Newport, the charge being that of carrying a pistol. Bowen went by the name of Jim Harris, also Ollie Brown.\n\u201cYou are instructed that if you believe the defendant just made a mistake and got in the wrong house, and that it was an honest mistake \u2014 he didn\u2019t know what he was doing, or where he was, and just happened to get in there through mistake, whether he was drunk or otherwise \u2014 then he would not be guilty. If you believe it was just an honest mistake he made there to get in, that he had no intention at the time to hurt anybody or to commit a felony, then he would not be guilty of burglary.\u201d\nThis instruction apnears as No. 8.\nIt is not clear whether the reference is to Instruction No. 5 or Instruction No. 8. [The word \u201cinstrument\u201d was used, but apparently \u201cinstruction\u201d was intended.]\nThe defendant was sentenced to serve six years in the penitentiary.", "type": "majority", "author": "Griffin Smith, C. J." } ], "attorneys": [ "H. 8. Grant, for appellant.", "Guy E. Williams, Attorney General, and Earl N. Williams, Assistant Attorney General, for appellee." ], "corrections": "", "head_matter": "Bowen v. State.\n4286\n168 S. W. 2d 836\nOpinion delivered March 1, 1943.\nH. 8. Grant, for appellant.\nGuy E. Williams, Attorney General, and Earl N. Williams, Assistant Attorney General, for appellee." }, "file_name": "0380-01", "first_page_order": 400, "last_page_order": 405 }