Rawlings v. State

Kirby, J., (after stating the facts). It is contended first for reversal that there was a variance between the proof and the allegations of the indictment, since the check alleged to be uttered as a f orged instrument, was drawn on the Peoples’ Bank of Harrison, as shown by the copy set out in the indictment and the check introduced in evidence, while the indictment stated it purported to be a check drawn on the Citizens’ Bank of Harrison. (1) The indictment was not insufficient on this account, nor was there a variance in the proof of the instrument alleged to have been uttered in producing the check, which was exactly set out in the indictment. Its statement that the paper purporting to be a check on the Citizens Bank of Harrison, would be controlled by the terms of the instrument set out in exact tenor and effect, or such inconsistent purporting clause treated as surplus-age. Wharton’s Crim. Law (11 ed.), section 943; Read v. State, 63 Ark. 618; Wishard v. State, 115 Pac. (Okla.), 796; Kirby’s Digest, § § 2229-2233. It is next insisted that the court erred in giving instruction numbered 10, over appellant’s objection. This instruction reads as follows: “I charge you that when a party commits a crime, and then confesses freely and voluntarily and without any promise ¡of hope or without any fear of punishment, then the confession is admissible and sufficient under the law to sustain a conviction. “Confessions, it is true, are always to be received with caution, but they are taken with all the facts and circumstances in tbe case, and, ¡coupled with the ¡additional proof that ¡a crime has been committed. ” (2) This instruction was given by tbe court in relation to tbe statements made by tbe accused, claimed to be confessions made at tbe time of bis arrest, and tbe statute provides that “a confession ¡of a defendant unless made in open court, will not warrant a conviction unless accompanied with other proof that such offense was committed.” Kirby’s Rig., § 2385. The instruction is not happily phrased, ¡and ¡does not as clearly ¡and definitely express the law as could have ¡been done, but it does in ¡effect tell the jury that the confession must be coupled with the additional proof that the crime has been committed in order to warrant a conviction, and it is not erroneous as already held in Marshall v. State, 84 Ark. 92. (3) It is next urged that there is no testimony showing that the offense was ¡committed outside that of the statements of the defendant made at the time of his arrest. Two witnesses testified that the defendant said that Abe Curry had had his niece to change the date ¡of -the check alleged to have been uttered as the f orged instrument, and there is no testimony other than this ¡showing that there was ¡an alteration of the check. Nowhere was it shown that this check ever bore a different date than that appearing upon it ¡at the time of the trial, nor that it had ever been changed in any respect whatever, nor that it-had not been signed by the drawer ¡and written as it appeared at the time of the trial. The testimony is not sufficient to support the verdict, and the judgment is reversed and the cause remanded for a new trial.