Cook v. State , 1913 Ark. LEXIS 325 ( 1913 )

Hart, J.,

(after stating the facts). Counsel for defendant moved the court to quash the indictment because it was not concurred in by twelve members of the grand jury, and assigns as error the action of the court in overruling his motion.

The record shows that the grand jury came into court, in charge of a deputy sheriff, and that all its members were present; that the indictment in question was returned in open court and was properly endorsed “A true bill” and signed by the foreman; that it was handed to the clerk and ordered filed and numbered, as the law directs.

Where an indictment is properly returned into court, it will be presumed that it was duly found with the concurrence of the requisite number of the grand jury, and the court did not err in overruling the defendant’s motion to quash the indictment. St. Louis, I. M. & S. Ry. Co. v. State, 99 Ark. 1; Nash v. State, 73 Ark. 399.

It is next contended by counsel for defendant that the testimony is not sufficient to support the verdict. They first contend that there was no testimony, other than that of the accomplice, Howell McElroy, tending to show that the saloon was broken into in the night time.

The defendant himself introduced in evidence an almanac showing sunrise to have been at 4:39 o ’clock on the morning of May 21, 1912. The proprietor of the saloon testified that he left there at 12 o’clock at night and that the saloon showed evidence of having been broken into when he returned the next morning. The bartender said that he opened the saloon at 4:10 o’clock in the morning; that the glass door had been broken into since he had left the night before; and the evidence of both the proprietor and the bartender showed that whiskey and money had been taken from the saloon since it was closed up the night before. The jury might have inferred from their evidence that the saloon was broken into in the night time.

Counsel for defendant also insist that there is no evidence, other than that of Howell McElroy, tending to connect the defendant with the commission of the offense.

The proprietor of the saloon testified that Howell McElroy and the defendant came into the saloon about 11 o ’clock on the night it was burglarized, and asked him to let Howell McElroy have some whiskey. He refused to do so, and the defendant told him that they were going to have it before morning if they had to take it.

Other witnesses testified that the defendant and Howell McElroy were seen together early the next morning; that- they had in their, possession whiskey of the same brand as that taken from the saloon, and that a few days thereafter the defendant was seen in possession of several dollars in nickels and dimes, and the • proprietor of the saloon said that the money taken from it consisted of quarters, nickels and dimes.

It was also shown that Howell McElroy and the defendant were seen together shortly before and shortly after the burglary was committed.

This was a sufficient corroboration of Howell McElroy. Celender v. State, 86 Ark. 23.

Finally, it is insisted that the court erred in admitting questions concerning defendant’s character.

The defendant took the stand in his own behalf, and thereby became subject to impeachment as any other witness. Younger v. State, 100 Ark. 321.

It was shown that the defendant had in his possession a few days after the burglary was committed several dollars, consisting of nickels, dimes and quarters. On cross examination the prosecuting attorney asked him where he had gotten this money and what kind of business he had been engaged in lately. The defendant responded that he had won it in a crap game. This was competent for the purpose of discrediting the defendant’s testimony, and the court did not abuse its discretion in permitting the prosecuting attorney to ask the questions and requiring the defendant to answer them. Turner v. State, 100 Ark. 199; Hollingsworth v. State, 53 Ark. 387; McAllister v. State, 99 Ark. 604.

The judgment will be affirmed.