Marshall v. State

75 S.W. 584, 71 Ark. 415, 1903 Ark. LEXIS 65

• Court: Supreme Court of Arkansas
• Decided: June 6, 1903
• Status: Published

Opinion

Wood, J.

The indictment was sufficient. Sand. & H. Dig. § 1717; State v. Boyce, 65 Ark. 82.

It was not necessary, under section 1717, supra, to particularly describe in the indictment the kind of money taken further than gold, silver or paper money. But, inasmuch as the money was described as “of the TJnited States,” it was made a part of the description, and the prosecuting attorney should have proved it. Also that it was “gold, silver and paper money” as alleged. This was not done, and the court should have given the instruction asked for by appellants. Wilburn v. State, 60 Ark. 14; Starchman v. State, 62 Ark. 538; Hamilton v. State, 60 Ind. 193; Watson v. State, 64 Ga. 61.

The object and scope of opening statements under the statute are discussed in McFalls v. State, 66 Ark. 16. According to the doctrine there announced and the authorities generally, the statement of the prosecuting attorney in this case was highly prejudicial ; so much so that we do not think the charge of the court could have eliminated the poison from the minds of the jury.

He is not supposed to know what the evidence for the defense will be. Ayrault v. Chamberlain, 33 Barb. 229.

Judge Graves in Scripps v. Reilly, 35 Mich. 371, says: “The cases unite in substantially denying the right to get before the jury a detail of the testimony expected to be offered, and especially any not positively entitled to be introduced, and deny the right to use it as a cover for any topics not fairly pertinent.”

For the errors indicated the judgment is reversed, and the cause is remanded for a new trial.