Silvie v. State , 117 Ark. 108 ( 1915 )

Wood, J.,

(after stating the facts). The Attorney General confesses that the court erred in consolidating the causes for trial. This court, in McClellan v. State, 32 Ark. 609, and in Halley v. State, 108 Ark. 224, has criticised and 'condemned the practice of ■consolidating separate causes under separate indictments for the purpose of trial. In the latter case we said: “While the court would have no authority against the objection of the defendant to try the cases together, ye.t as the record affirmatively shows the defendant expressly consented to it, and inasmuch as the record does not show he. was prejudiced thereby, he can not now be heard to complain of the action of the court which was superinduced by him. ’ ’

(1) Here, while the record does not .show the affirmative consent of the 'appellant to the consolidation, or that he requested the same, neither does it show that he objected to such procedure. Being present and not objecting, he must be held to have waived the irregularity, and since the record does not disclose that he was prejudiced thereby, he is in no attitude to complain.

(2) The Attorney General also confesses that the court erred in overruling the demurrers to the indictment for embezzlement, for the reason that there was no sufficient description of the money alleged to have been embezzled. This confession of error is well taken. The indictments, it will be observed, .did not charge embezzlement .of the checks, but, after .charging the conversion of the checks into money, they ¡alleged 'that he “did unlawfully, fraudulently and feloniously make way with, embezzle and convert to. his own use the ¡said sum” of money, specifying $86.40 in one case and $116 in the other, with no other description of the money.

In Cook v. State, 80 Ark. 495, the appellant was Charged, among other things, with the larceny of six dollars in money of the value of six dollars. ’ ’ In that case we said: “The indictment describes it as ‘six dolars in money of the value of six dollars,’ without alleging the kind, whether gold, silver or paper, and the evidence goes no further than that in describing it. This is not sufficient, as the statute provides that ‘it shall not be necessary to particularly describe in the indictment the kind of money taken or obtained, further than to allege gold, silver or paper money.’ Kirby’s Digest, § 1844.”

If the indictment had charged, in the language of the statute, supra, that the money embezzled was “gold, silver or paper money, ’ ’ it would have been sufficient. State v. Boyce, 65 Ark. 82; Marshall v. State, 71 Ark. 415. But the indictments did not do this, and hence did not comply with the requirements of the statute.

(3) These indictments for embezzlement are further defective in not alleging the ownership ¡of the money alleged to have been embezzled. Merritt v. State, 73 Ark. 32; Fletcher v. State, 97 Ark. 1; Russell v. State, 97 Ark. 92; Wells v. State, 102 Ark. 627.

(4) In view of further proceedings on the charges of ’embezzlement, it is not improper to state that in order to convict the appelant of these it will be necessary for the State to .allege and prove either that appellant emibezzled the checks, 'the property of Wolf 'and Pollock and of 'Stevenson, or that he embezzled their money.

(5-6) The indictment for obtaining money under false pretenses was sufficient. There was a sufficient allegation as to ownership and as to the description of the property.. The indictment charged that appellant “did unlawfully, falsely, fraudulently and feloniously obtain from Ed Haglin $53.54 gold, silver and paper money of tbe value of $53.54,” etc. This was a sufficient allegation of ownership in Haglin, and a sufficient description of the money. But there is no proof in the record showing the kind of money 'that .appellant obtained. We have held that the allegations of the indictment must be sustained by proof as to tbe kind of money described therein. Maxey v. State, 85 Ark. 500, and cases there cited.

(7) The court should have granted 'appellant’s request for a peremptory instruction on the false pretense charge because of a failure of proof.

For the error in overruling appellant’s demurrer to the indictments for embezzlement, and in refusing to grant his prayer for a peremptory instruction on the charge- of false pretenses, the judgments are reversed and the causes are remanded with directions to sustain the demurrer to the indictments for embezzlement, ¡and for a new trial on the charge of false pretenses.