37 Ark.] NOVEMBER TERM, 1881. 265 Howard v. The State. HOWARD V. THE STATE. 1. CRIMINAL LAW : Prisoners right to copy of indictment. In criminal prosecutions the accused is entitled by the Declaration of Rights, to counsel, process for witnesses, trial by jury, and to have a copy of the indictment before arraignment; but the Legislature has the power to regulate the manner of securing these rights to him; and by Statute, he can not, in a prosecution for an offense not capital, have a copy of the indictment, without tendering the fee for the copy. APPEAL from Benton, Circuit ()mut Hon. J. H. BERRI', Circuit Judge. E. P. Watson, for appellant: Appellant was entitled to a copy of the indictment before
266 SUPREME COURT OF ARKANSAS, [37 Ark. Howard v. The State. plea. Sec. 10, Bill of Rights; Cons. Ark., sec. 1826, Gantt's Dig.; Futs. v.-State, 8 Ohio (State), 102; Smith v. State, 8 Ohio, 294. C. B. Moore, Attorney-General, for the State: • The clause in section 10, Bill of Rights, Cons., 1874, is the same, almost verbatim, as in section . 11, Bill of Rights, Const., 1836. Section 1825, Gantt's Digest, provides that in capital cases a copy of the indictment shall be served on defendant, etc. ; but section , 1826,. lb., only provides that he shall have a copy (in all other than , capital cases) on payment of the fees for same. These sections are taken from the Rovised Statutes, and have been the law since March 1, 1838. They declare, as the Legislature had a. right to do, haw and under what restrietions the rightto a copy shall be exercised. • No fees were tendered or offered, and no showing was made that. defendant was unable to pay tItem. The Ohio caaes cited for appellant have no bearing. In both of them the question of time for the service of a copy enters, Under the Ohio Statutes. ' It doee not appear that defendant was not on bail. If not in tuatedy, he had no right to a copy of the indictment, even if a eiPital case. Daumon v. State, 29 Ark., 116. • : _i'PTOLISH, C. J. The indictment in this case was returned into 'the Circuit Court of Benton oounty, by the grand jury, ou'.the twenty-ninth of September, 1881, charging appellant, W. J. .Howerd, with grand larceny—stealing , a. mare and the iennie day he was brought into conrt in custody of the erit;4nformed of the nature of the Charge against • bun,':.tind*, being unable to employ counsel, an :attorney of ;tibe ourt *as:appointed tO defend him ) and, the. cause ' set ri trial .: o ‘ n the 'first of October. On that day he appeared
.137 Ark.] NOVEMBER TERM, 1881. 267 Howard. v. The State. in ‘ oeurt in his . proper person, as well as . by attorney (the -record. states), and not being,ready for trial on. account of the absence of certain witnesses, the, cause, was continued until the third of October, on Which day he again appeared, etc., was formally arraigned, pleaded not guilty, was tried by a jury, found guilty, moved for a new trial on the grotind that he had not been furnished with a copy of. the indictment before ar- • raignment, and the motion overruled. From a bill Of exceptions taken by appellant, it appears that on the third of October, before he was arraigned, ..he, through his attorney, demanded of, the conrt that he , ,haye a copy of the indictment, duly certified by the clerk . as such, served .upon . .him . before he entered his plea. . Whereupon the court asked , him if he had, .since the filing of the indict7 ment in court, _had access , to the same, to which he replied, through his counsel, that he had. Thereupon the court:of- . fered to him the original inclictment, , ...and . refused to, order the clerk . to . make . out ., a certified copythereof, a. .ncl have it, served upon. him, and ordered him to, 13q . forthwith arraigned. and to plead to the . indictment. No fees were tendered, or . offered to be tendered, to the clerk for a copy: . of the . indictment, and appellant made no , showing that he was unable to pay , the fees of the clerk for such copy. The only question presented on , this appeal :is whether the court below erred,, upon the above facts shown :by the record entries, and the bill of , exceptions, in . refusing to order the clerk to make out a certified copy„,of the indictment.. and that it be served upon appellant before his arraignment and plea. At common law, the accnsed, in ease of treason,or felony, wa g not entitled to a ' copy of the . indictment; but in offenses inferior to felony, the right Of having a.eopy was, at all times, a.c1 mitted: 1 Chitty, Cr. Law, 4034... . „ • . Secaon 11 of Our Declaration, of Rights of 1836 pro- ..
268 SUPREME COURT OF ARKANSAS, [37 Ark. Howard v. The State. vided:—"That in all criminal prosecutions the accused hath a right to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof," etc. Had there been no legislation to regulate the enforcement of this section of the Declaration of Rights, the courts might have made rules of practice to secure to persons accused of crimes the benefits intended by it, or have looked to Statutes of the BritishParliament in aid of or to supply the defect of the common law, made prior to the fourth year of James I., so far as they were-applicable to our form of government, etc. Gantt's Dig., sec. 772. But on the third of February, 183S, the legislature passed an. act regulating criminal proceedings, which became Chapter 45 of the Revised Statutes, and contained the following sections, among others:— "Section 110.It shall be the duty of the clerk of the court in which an indictment against any person for a capital offense May be pending, whenever . the defendant shall be in custody, to make out a copy of such indictment, and cause the same to be delivered to the defendant, or his counsel, at least forty-eight hours before he shall be arraigned on such indictment; but the defendant may, at his request, be arraigned and tried at any time after the service of such copy. "Section 111.—Every person who shall be indicted for an offense, who shall be in custody, or held by recognizance to appear and answer such indictment, shall, on demand, and on the payment of the fees allowed by law therefor, be entitled to a copy of the indictment, and all endorsements thereon." Section 112 provides for the appointment of counsel for persons accused of -felony, who are unable to employ any. eta
37 Ark.] NOVEMBER TERM, 1881. 269 Howard v. The State. Sections 110 and 111, as above copied, have never been altered or repealed, and they were carried into Gantt's Dig. as sections 1825-6. They are also in harmony with the Bill of Rights adopted subsequent to that of 1836. Section 11 of the Declaration of Rights of 1864, is a literal copy of the same section of the Declai .: ation, of Rights of 1836. Section 8 of the Bill of Rights of 1868, provides that:—"In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury etc., and to be informed of the nature and cause of the accusation against him." The words "and to have a copy thereof," being omitted. But they were restored in the tenth section of the Declaration, of Rights of 1874, which provides that: "In all criminal prosecutions, the accused shall enjoy the right to a. speedy and public trial, etc., and to be informed of the nature and cause of the accusation against him, and to have a copy thereof." It is only in capital cases, when the accused Only in capital cas-'is in custody, that the Statute imposes the duty es that prisoner upon the clerk to make out a copy of the indict-may have copy of in-ment, and cause it to be delivered to him, or dictment without fee. his counsel, at least forty-eight hours before ar-• raignment. In all other cases, when the accused is in custody, or on recognizance, he has a right to such copy, on application to such clerk, and payment of fees. Dawson v. State, 29 Ark., 116. Perhaps (though the question is not presented in this case), if it be shown to the court that the accused is unable to pay for a copy, and it has been refused by the clerk for that reason, it would be the duty of the court to order the clerk to furnish it. The accused is entitled, under provisions of the Declaration of Rights, to counsel, process for witnesses, a trial by jury, mad to have a copy of the indictment; but it is within
270 SUPREME COURT OF ARKANSAS, [37 Ark.. Howard v. The State. the province of the legislature to regulate the manner of securing to, him these rights. The Statute regulating the furnishing of a copy of the indictment has been administered in the criniinal practice of this State, under all the constitution's, for forty years, and there has been no decision that it Was in Conflict with the provisions of any of them. Under Article VI of the Federal Bill of Bights, the aecuSed is entitled to be informed of the nature and cause of the accusation against him. In United : States v. Bickford, 4 Blatchford, 339, the defendant applied to the Court for an order, that a copy of the indictment be furnished to him, hY tbe government, before trial, and relied upon the above article. The Court held that Oa copy of the indictment could be furnished at the expense of the government, inasmuch as the law had made no provision therefor. That was not a capital case. In treason, and other capital offenses, in act of Congress provides that the acetised shall be , furnished with a copy of the indictment before triaL Rev Stat. U. S., Sec. 1033; United States v. Cur-tis, 4 Mason, 232. A section of the Revised Statutes of New York, like ours, provided that every persOn in arrest, or on recognizance, to ansWer an indictment, should an demand, and paying the fees allowed by law, be entitled to a copy of the indictment, etc. Colby's Cr. L., 265. In People v. Warren, i Wkeeler's Cr. Cases, 140, it was ruled that the counsel for the accused had no right to demand of the district attorney a copy of the , indictment; that he must apply to the clerk,.. whose duty it wss to furnish the copy on payment of fees. Under the Statutes and practice of the several states and the _United States, differing somewhat in minor provisiona, the prif&er, (says Mr. Bishop), may have a copy of the
37 Ark.] NOVEMBER, TERM, 1881. . 271 Howard v. The State. indictment furnished at his pleasure, etc. He should be careful not to waive the right if he wishes to exercise it,. and should keep himself within the terms of the Statute of his own State. 1 Bithop Cr. Pr., sec. 959, and cases cited in notes. In this case the indictment waS shert and simple, charging appellant in the usual form, with stealing a mare and saddle. On the day it was found, twenty-ninth S4tember, he was brought into court, informed of the nature of the charge, an attorney appointed to defend him, and the cause set for trial on the first of October. On that day, it was put over to the third, at his instance, on account of absent witnesses. From the thne the indictment was filed in court, to the day of trial, he had access te it. It is not made to appear that he or his counsel applied to the clerk for a copy of the indictment, and that it was refused. But on the day of trial, before arraignment, he demanded of the, court an order that he have a copy of the indictment, duly certified by the clerk, served upon him before he entered his plea. It is made to appear, by the bill of exceptions, that no fees were tendered, or offered to be tendered, to the clerk for such copy, and that appellant made no showing that he was unable to pay the fees. The order was demanded of the court as a constitutional right, regardless of the Statute regulating the manner in which the right is to be obtained. As demanded, it was refused by the court, and properlY on all the faets made to appear. Neither of the Ohio cases relied on by the connsel for appellant is applicable to the piestion presented for decision in this' case. In Smith v. State, 8 Ohio, 294, Smith was coniicted 'for uttering counterfeit money, and moved in arrest of ment on the ground that he had not been famished copy of the indictment twelve hours befom trist l as :
272 SUPREME COURT OF ARKANSAS, [37 Ark. by Statute. The court held that the Statute was directory, and that the accuspd had waived the right to have a copy of the indictment, by going to trial without demanding it. In Fouts v. State, 8 Ohio State, 98, Fouts was convicted oce a capital offense, and moved in arrest and assigned as error, that he had not been furnished with a copy of the indictment before trial. It appears from the opinion of the court, that by a constitutional provision, like ours the accused had the right "to demand the nature and cause of the accusation against him, and to have a copy thereof." It also appears that a Statute of Ohio provided that:— "A copy of the indictment, etc., shall be delivered to every person who may be indicted for an offense, the punialunent whereof is capital, at least twelve hours before the trial. The court held, as in the above case, that the right to a copy was waived by going to trial without claiming it, and so this court ruled in Dawson v. State, Sup. Affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.