McCarthy v. State

119 S.W. 647, 90 Ark. 384, 1909 Ark. LEXIS 481

• Court: Supreme Court of Arkansas
• Decided: May 10, 1909
• Status: Published

Opinion

Wood, J.,

(after stating the facts). 1. The motion for continuance showed that the witnesses whose presence was desired lived beyond the jurisdiction of the court. It was not shown how the appellant could have procured their attendance at the future term of the court.

The court ordered the motion for continuance read as evidence in appellant’s behalf, which gave appellant the benefit of the evidence as if it had been taken by deposition. The court did not abuse its discretion in overruling the motion for continuance. Thompson v. State, 26 Ark. 323.

2. The court did not err in overruling appellant’s motion to quash the indictment. The exact point is ruled in Hampton v. State, 67 Ark. 266, where we said, quoting syllabus: “Finding a second indictment on the testimony on which the first was based, without retaking the testimony, is an irregularity merely, and not ground for reversal of a judgment of conviction, though between the finding of the first and second indictments a member of the grand jury which found the first indictment had been excused, and another juror substituted.” See Nash v. State, 73 Ark. 399.

3. The indictment was sufficient. Sec. 1603, Kirby’s Digest; Id. •§ 2227, note. See Minter v. State, 71 Ark. 178. The indictment charges that the intent was to steal goods, wares and merchandise of the value of $11.06, which was a sufficient charge of an intent to commit the offense of grand larceny — a felony. Kirby’s Digest, § § 1821-26. See Reed v. State, 66 Ark. 110; Shotwell v. State, 43 Ark. 345; Harvick v. State, 49 Ark. 514.

Affirmed.