State v. Sherman

74 S.W. 293, 71 Ark. 349, 1903 Ark. LEXIS 45

Opinion

Wood, J.,

(after stating the facts). The motion to instruct the jury to find the defendant not guilty, before the introduction of any evidence whatever, was, in effect, a demurrer to the indictment, and we shall so treat it.

Our attention has been called to no defect in the indictment. If there was one, we fail to detect it, unless the allegation that the steer stolen was the “property of the E. S. Hudspath estate,” was demurrable. But in Boarman v. State, 66 Ark. 65, this court upheld an indictment charging defendant with entering “upon lands belonging to the J. J. Hemphill estate,” and approved the ruling in thé ease of People v. Smith, 112 Cal. 333.

The indictment sufficiently identified the illegal act, and the motion to instruct the jury to acquit the defendant should have been overruled, and defendant placed on trial. Treating the motion as a demurrer, defendant was never in jeopardy.

Eeversed and remanded for a new trial.