Ark. Code Ann. § 16-85-405 (2026)

Case Notes

Defendant's Name.

The doctrine of idem sonans held not to apply. Woods v. State, 123 Ark. 111, 184 S.W. 409 (1916).

One indicted under one name and tried and convicted under another cannot afterward raise the objection that a correction was made before conviction. Martin v. State, 161 Ark. 177, 255 S.W. 1094 (1923); Daniels v. State, 186 Ark. 255, 53 S.W.2d 231 (1932).

The minor misspelling of the victim's name in the information did not constitute a fatal defect as the rights of the defendant were not prejudiced. Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991).

Injured Persons.

Error as to name of victim held immaterial. State v. Seely, 30 Ark. 162 (1875); Bennett v. State, 84 Ark. 97, 104 S.W. 928 (1907); Andrews v. State, 100 Ark. 184, 139 S.W. 1134 (1911); Sutton v. State, 163 Ark. 468, 260 S.W. 403 (1924).

It is not necessary in an indictment for larceny or embezzlement to name those composing the partnership whose money has been stolen or embezzled. Ivey v. State, 109 Ark. 446, 160 S.W. 208 (1913); Hughes v. State, 109 Ark. 403, 160 S.W. 209 (1913).

—Ownership of Property.

Where two or more counts are used to charge the ownership of property in different persons so as to meet the contingencies of the evidence as to ownership, the prosecuting attorney should state that fact to the court on the demurrer and make it appear of record that only one offense was intended. State v. Jourdan, 32 Ark. 203 (1877).

Erroneous or incomplete allegation of ownership not material or prejudicial. Tucker v. State, 194 Ark. 528, 108 S.W.2d 890, 1937 Ark. LEXIS 375 (1937); Eason v. State, 198 Ark. 885, 132 S.W.2d 5 (1939); Johnson v. State, 199 Ark. 196, 133 S.W.2d 15 (1939); Tate v. State, 204 Ark. 470, 163 S.W.2d 150 (1942).

Evidence sufficient to show information was not demurrable on ground of being vague, indefinite and uncertain. Smith v. State, 199 Ark. 900, 136 S.W.2d 673 (1940).

An erroneous allegation of ownership of property does not affect any substantial right of the defendant charged if the offense is described with such certainty as to identify the act so there can be no doubt about the particular offense charged. Boyette v. State, 265 Ark. 707, 580 S.W.2d 473 (1979).

Instruments.

Where an indictment for forgery of a lost instrument sets out its substance, without alleging that the defendant destroyed it, it is error to charge the jury that a misdescription of the instrument is immaterial. Bench v. State, 63 Ark. 488, 39 S.W. 360 (1897).

As a general rule, an indictment for forgery of a bank check should set forth the instrument according to its tenor and should purport to do so, and it will not suffice to set it forth accurately in fact if it does not set forth its tenor; but if the instrument is lost or destroyed, or is in the possession of the accused or is otherwise inaccessible to the pleader, the substance will suffice. Crossland v. State, 77 Ark. 537, 92 S.W. 776 (1906)Questioned byHawthorn v. State, 206 Ark. 1009, 178 S.W.2d 490 (Ark. 1944).

An indictment for forgery of a certain writing which alleges that the writing “is in substance as follows,” and the writing is thereupon set out so minutely and in detail as to exclude the idea that the substance alone is merely set out, will be taken as if the writing was set out according to its tenor. Evans v. State, 94 Ark. 400, 127 S.W. 743 (1910).

Jurisdiction and Venue.

The venue must be proved on the trial, though not alleged in the indictment. Thetstone v. State, 32 Ark. 179 (1877).

Where the name of the county appears in the caption, and is referred to in the body of the indictment, it is sufficient. State v. Hunn, 34 Ark. 321 (1879); Hughes v. State, 154 Ark. 621, 243 S.W. 70 (1922).

Evidence held sufficient to prove jurisdiction and venue. Hampton v. State, 67 Ark. 266, 54 S.W. 746 (1899); Meador v. State, 201 Ark. 1083, 148 S.W.2d 653 (1941); Ward v. State, 203 Ark. 1024, 160 S.W.2d 864, 1942 Ark. LEXIS 196 (1942); Wise v. State, 204 Ark. 743, 164 S.W.2d 897 (1942); Trotter v. State, 206 Ark. 690, 177 S.W.2d 173 (1944).

Where an indictment alleged that the crime was committed in a certain county but failed to allege in which of the two districts of the county it was committed, it will be considered that it was committed in the district in which the grand jury was impaneled. Cegars v. State, 150 Ark. 648, 235 S.W. 36 (1921).

Whether the crime was committed in the alleged county was a jury question. Heath v. State, 207 Ark. 425, 181 S.W.2d 231 (1944).

Charging the location at which an offense occurred is necessary to establish the jurisdiction of the court; therefore, it is sufficient if the court having jurisdiction of the offense alleged can be determined from the information. Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987).

Particular Language.

As to omission and use of certain descriptive words, see: Holt v. State, 47 Ark. 196, 1 S.W. 61, 1886 Ark. LEXIS 3 (1886); Kansas C. S. R. Co. v. State, 194 Ark. 80, 106 S.W.2d 163 (1937); Davis v. State, 196 Ark. 721, 119 S.W.2d 527 (1938); Atha v. State, 217 Ark. 599, 232 S.W.2d 452 (1950)Questioned byFrancis v. Benton, 240 Ark. 779, 402 S.W.2d 110 (Ark. 1966).

It is enough if the information sufficiently informs the defendant of the charge or charges so that a defense can be prepared. Dean v. State, 293 Ark. 75, 732 S.W.2d 855 (1987).

Information alleging that defendant had three prior “arrests” rather than three prior “convictions” held sufficient where evidence showed that defendant did in fact have three prior convictions. Johnson v. State, 55 Ark. App. 117, 932 S.W.2d 347 (1996).

Perjury.

Indictment for perjury held insufficient. Harp v. State, 59 Ark. 113, 26 S.W. 714 (1894).

An indictment for perjury will be sufficient if it alleges that the perjured testimony was material but does not specify how it was material. Loudermilk v. State, 110 Ark. 549, 162 S.W. 569 (1913).

In an indictment charging the defendant with perjury, it is not sufficient merely to aver that the oath or affidavit was false; it is essential that it appear what the truth is, but that requirement is met if the allegation that a certain statement is false necessarily implies that the converse is true and necessarily implies what the converse is. Loudermilk v. State, 110 Ark. 549, 162 S.W. 569 (1913); Atkinson v. State, 133 Ark. 341, 202 S.W. 709 (1916).

Several assignments of perjury may be embraced in one count and all the several particulars in which the accused swore falsely may be embraced in one count, and proof of falsity of any one or more of the assignments will justify a conviction. Atkinson v. State, 133 Ark. 341, 202 S.W. 709 (1916).

An indictment for perjury in procuring a marriage license alleging that it was material that an affadivit be made to secure the license need not set out the facts making it material. Cox v. State, 164 Ark. 126, 261 S.W. 303 (1924).

An indictment for perjury need not refer to the statute pursuant to which the oath was administered. Cox v. State, 164 Ark. 126, 261 S.W. 303 (1924).

In indictments, for perjury, the falsity of the testimony or statement for which the defendant is indicted may be shown to be material either by direct averment or by allegation from which the materiality appears. Cockrum v. State, 186 Ark. 14, 52 S.W.2d 642 (1932).

Indictment for perjury held sufficient. Cockrum v. State, 186 Ark. 14, 52 S.W.2d 642 (1932); Cluck v. State, 192 Ark. 1036, 96 S.W.2d 489 (1936).

Plaintiff's Name.

The State was permitted on the day before trial to amend the information to change the name of one of the victims where the change did not prejudice the presenting of a defense. Lovett v. State, 330 Ark. 33, 952 S.W.2d 644 (1997).

Presumptions and Judicial Notice.

Chastity of a female is presumed and need not be alleged in a prosecution for seduction. Willhite v. State, 84 Ark. 67, 104 S.W. 531 (1907).

The Supreme Court will take judicial notice of cattle dipping rules promulgated by the board of control of agricultural experiment station and they need not be alleged in the indictment or proved. Palmer v. State, 137 Ark. 160, 208 S.W. 436 (1919).

Supreme Court takes judicial notice that Oklahoma is a dry state and it is not necessary to state that fact in the information in a prosecution for unlawful transportation of whiskey. Jones v. State, 198 Ark. 354, 129 S.W.2d 249 (1939).

Statutory Language.

An indictment for a statutory offense must state all of the circumstances that constitute the offense, no case being brought by construction within the statute unless it is completely within its words; however, the precise words of the statute need not be used, but words of equivalent import, or more extensive signification, which necessarily include the words of the statute, may be substituted. Wood v. State, 47 Ark. 488, 1 S.W. 709 (1886).

An indictment which states a statutory offense with such a degree of certainty as to enable the court to pronounce judgment upon conviction according to the rights of the case, and which states the acts constituting the offense in ordinary and concise language in such manner as to enable a person of common understanding to know what is intended, is sufficient even though the facts alleged to constitute the offense are not couched in the precise language of the statute creating the offense. Wood v. State, 47 Ark. 488, 1 S.W. 709 (1886); State v. Bond, 151 Ark. 203, 235 S.W. 801 (1921).

Although an information is drawn in the language of a particular section of the statute and such section is not applicable, if, by reasonable construction, the language of the information charges an offense against the laws of the state under any other provision of the statutes, the proceeding should not be nullified. Baker v. State, 200 Ark. 688, 140 S.W.2d 1008 (1940).

Sufficiency.

Indictment or information held sufficient. Beard v. State, 79 Ark. 293, 95 S.W. 995, 97 S.W. 667 (1906), dismissed, 207 U.S. 601, 207 U.S. 602, 28 S. Ct. 258 (1907); State v. Peyton, 93 Ark. 406, 125 S.W. 416 (1910); Pearce v. State, 97 Ark. 5, 132 S.W. 986 (1910); Gurley v. State, 179 Ark. 1149, 20 S.W.2d 886 (1929); Green v. State, 185 Ark. 1098, 51 S.W.2d 511 (1932); Slinkard v. State, 193 Ark. 765, 103 S.W.2d 50 (1937); Brockelhurst v. State, 195 Ark. 67, 111 S.W.2d 527 (1937); Craig v. State, 195 Ark. 925, 114 S.W.2d 1073 (1938); Budd v. State, 198 Ark. 869, 131 S.W.2d 933 (1939); Johnson v. State, 199 Ark. 196, 133 S.W.2d 15 (1939); Rowland v. State, 213 Ark. 780, 213 S.W.2d 370 (1948), cert. denied, 336 U.S. 918, 69 S. Ct. 641, 93 L. Ed. 1081 (1949); Underdown v. State, 220 Ark. 834, 250 S.W.2d 131 (1952); Jackson v. State, 226 Ark. 731, 293 S.W.2d 699 (1956); Castle v. State, 229 Ark. 478, 316 S.W.2d 701 (1958); England v. State, 234 Ark. 421, 352 S.W.2d 582 (1962); Edwards v. State, 244 Ark. 1145, 429 S.W.2d 92 (1968); Houpt v. State, 249 Ark. 485, 459 S.W.2d 565 (Ark. 1970); Ridgeway v. State, 251 Ark. 157, 472 S.W.2d 108 (1971); Williford v. State, 252 Ark. 397, 479 S.W.2d 244 (1972); Henderson v. State, 255 Ark. 870, 503 S.W.2d 889 (1974); Haynie v. State, 257 Ark. 542, 518 S.W.2d 492 (1975); Fortner v. State, 258 Ark. 591, 528 S.W.2d 378 (1975); Owen v. State, 263 Ark. 493, 565 S.W.2d 607 (1978); Beard v. State, 269 Ark. 16, 598 S.W.2d 72 (1980); Browning v. State, 274 Ark. 13, 621 S.W.2d 688 (1981); Van Daley v. State, 20 Ark. App. 127, 725 S.W.2d 574 (1987).

In formal charges of offenses committed, it is sufficient if the state of facts set out charges a specific offense, and no charge will be deemed insufficient which does not tend to prejudice the substantial rights of defendant on the merits. Kansas C. S. R. Co. v. State, 194 Ark. 80, 106 S.W.2d 163 (1937).

Indictment or information held insufficient to support conviction. Robbins v. State, 219 Ark. 376, 242 S.W.2d 640 (1951).

Indictment or information is sufficient if it puts the accused on notice as to the nature of the charge. Underdown v. State, 220 Ark. 834, 250 S.W.2d 131 (1952).

Time.

The dismissal of an indictment because of a discrepancy as to the day of the offense amounted to an acquittal after the jury was impaneled, as under this section the indictment was good. Lee v. State, 26 Ark. 260 (1870).

Indictment is sufficient even though it charges crime committed on future or impossible date. Conrand v. State, 65 Ark. 559, 47 S.W. 628 (1898); Hunter v. State, 93 Ark. 275, 124 S.W. 1028 (1910).

Indictment sufficient which left date of offense blank. Grayson v. State, 92 Ark. 413, 123 S.W. 388 (1909); Threadgill v. State, 99 Ark. 126, 137 S.W. 814 (1911).

Time held not be a material ingredient of the offense. Venable v. State, 177 Ark. 91, 5 S.W.2d 716 (1928); Buchanan v. State, 214 Ark. 835, 218 S.W.2d 700 (1948); Haller v. State, 217 Ark. 646, 232 S.W.2d 829 (1950); Payne v. State, 224 Ark. 309, 272 S.W.2d 829 (1954).

Amendment to change date of offense held proper. Scoggins v. State, 258 Ark. 749, 528 S.W.2d 641 (1975); Robinson v. State, 11 Ark. App. 18, 665 S.W.2d 890 (1984).

Where the state was allowed to amend the information to allege that the crime occurred between November 1, 1983, and January 15, 1984, rather than on or about January 15, 1984, no prejudice resulted from the court's action because the particular time was not an ingredient of the offense. Huffman v. State, 288 Ark. 321, 704 S.W.2d 627 (1986).

In prosecution for sexual abuse in the first degree, the court was correct in permitting the jury to hear the testimony of both the prosecutrix that the incident took place on December 15 and the witness who testified as to events occurring on December 8, the conflict as to the date going only to the weight of the evidence. West v. State, 290 Ark. 329, 719 S.W.2d 684 (1986), rehearing denied, 290 Ark. 340A, 290 Ark. 329, 722 S.W.2d 284 (1987), superseded by statute as stated in, Ridling v. State, 348 Ark. 213, 72 S.W.3d 466 (2002), superseded by statute as stated in, Taylor v. State, 355 Ark. 267, 138 S.W.3d 684 (2003), superseded by statute as stated in, Dykes v. State, — Ark. App. —, — S.W.3d —, 2007 Ark. App. LEXIS 215 (Mar. 21, 2007).

A bill of particulars as to the precise time the offense was committed need not be granted unless the time is material to the allegation. Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987).

Victim's inability to fix definite date of rape does not defeat the charge, and any discrepancies in the testimony concerning the date of the offense were for the jury to resolve. Yates v. State, 301 Ark. 424, 785 S.W.2d 199 (1990).

Where the information alleged the offenses occurred in June or July, and the victim, a child, testified the incidents did not occur after the end of May, the time a crime is alleged to have occurred is not of critical significance unless the date is material to the offense, particularly with sexual crimes against children and infants. Fry v. State, 309 Ark. 316, 829 S.W.2d 415 (Ark. 1992).

Where the particular time was not an ingredient of the offense, amendment of the information just before trial as to the time of the offense was permissible. Harris v. State, 320 Ark. 677, 899 S.W.2d 459 (1995).

Generally speaking, the time a crime is alleged to have occurred is not of critical significance unless the date is material to the offense. Wilson v. State, 320 Ark. 707, 898 S.W.2d 469 (1995).

Exact dates of the sexual acts committed by defendant against the victim were immaterial to the offenses because the proof clearly showed that defendant had sexual intercourse with the victim while she was under the age of 14 and defendant's defense was that he did not commit the crimes. Martin v. State, 354 Ark. 289, 119 S.W.3d 504 (2003).

In a case involving second-degree sexual assault and attempted rape, defendant failed to show that he was prejudiced by an amendment to an information that changed the time of the alleged offenses because the exact dates of the offenses were immaterial where the victim testified that defendant attempted to rape her and had sexual contact with her while she was under the age of 14; moreover, the lack of dates was not prejudicial where defendant contended that the sexual acts alleged by the victim never occurred. Bean v. State, 2014 Ark. App. 107, 432 S.W.3d 87 (2014).

Variance.

Inconsistency between charge and proof held immaterial. Rawlings v. State, 117 Ark. 539, 174 S.W. 150 (1915); Cluck v. State, 192 Ark. 1036, 96 S.W.2d 489 (1936); Warren v. State, 250 Ark. 247, 464 S.W.2d 564 (1971); Hall v. State, 276 Ark. 245, 634 S.W.2d 115 (1982), cert. denied, Hall v. Arkansas, 459 U.S. 1109, 103 S. Ct. 738 (1983).

Variance between allegation and proof held fatal. Von Tonglin v. State, 200 Ark. 1142, 143 S.W.2d 185 (1940).

Amendment to information or indictment held permissible where there was no material variation or prejudice. Collins v. State, 200 Ark. 1027, 143 S.W.2d 1 (1940); Miller v. State, 250 Ark. 199, 464 S.W.2d 594, 1971 Ark. LEXIS 1241 (1971).

Notwithstanding variance in the wording of an information and the proof introduced at trial, reversal is not warranted unless the variance prejudiced substantial rights of the accused. Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989), overruled in part, McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002).

Cited: Scoggins v. State, 32 Ark. 205 (1877); Buell v. State, 45 Ark. 336 (1885); Leak v. State, 61 Ark. 599, 33 S.W. 1067 (1896); Bledsoe v. State, 64 Ark. 474, 42 S.W. 899 (1897); Ward v. State, 70 Ark. 204, 66 S.W. 926, 1902 Ark. LEXIS 38 (1902); James v. State, 110 Ark. 170, 160 S.W. 1090 (1913); Oakes v. State, 135 Ark. 221, 205 S.W. 305 (1918); Bender v. State, 202 Ark. 606, 151 S.W.2d 668 (1941); Haller v. State, 217 Ark. 646, 232 S.W.2d 829 (1950); Willis v. State, 221 Ark. 162, 252 S.W.2d 618 (1952); Ragsdale v. State, 222 Ark. 499, 262 S.W.2d 91 (1953); Smith v. State, 231 Ark. 235, 330 S.W.2d 58 (1959); Estes v. State, 246 Ark. 1145, 442 S.W.2d 221 (1969); Brewer v. State, 251 Ark. 7, 470 S.W.2d 581 (1971); Powell v. State, 251 Ark. 46, 471 S.W.2d 333 (1971); Wilson v. State, 263 Ark. 764, 569 S.W.2d 87 (1978); Drew v. State, 8 Ark. App. 120, 648 S.W.2d 836 (1983); Richard v. State, 286 Ark. 410, 691 S.W.2d 872 (1985); Speer v. State, 18 Ark. App. 1, 708 S.W.2d 94 (1986); Dunlap v. State, 303 Ark. 222, 795 S.W.2d 920 (1990).