Opinion
No. CR 73-160
Opinion delivered February 25, 1974
1. CRIMINAL LAW — TRIAL — REFERENCE TO PRIOR OFFENSES AS ERROR. — It is error for the trial court to permit the jury to be told, before they consider the issue of guilt or innocence, that a second offense is involved. 2. INDICTMENT INFORMATION — SUFFICIENCY OF ACCUSATION — PRIOR CONVICTIONS, NECESSITY OF SHOWING. — Even though the jury should not initially be told that the charge is a second offense, accused can not complain about the reference in the information to a second offense for it is essential, that the State make that fact known to accused so that he may have an opportunity to dispute the assertion of a prior conviction. 3. INDICTMENT INFORMATION — SUFFICIENCY OF ACCUSATION — BILL OF PARTICULARS. — When a defendant has difficulty in understanding the charge in an information, his remedy is to ask for a bill of particulars. [Ark. Stat. Ann. 43-1006 (Repl. 1964).]
Appeal from Lincoln Circuit Court, First Division, Randall L. Williams, Judge; reversed.
Brockman, Brockman Gunti, for appellant.
Jim Guy Tucker, Atty. Gen., by: Alston Jennings Jr., Asst. Atty. Gen., for appellee.
The appellant was charged with driving while intoxicated, the second such offense within a year, was found guilty by the jury, and was fined $250. Ark. Stat. Ann. 75-1027 and 75-1029 (Repl. 1957 and Supp. 1973). He is correct in his contention that the trial court erred in allowing the jury to be told before they considered the issue of guilt or innocence, that a second offense was involved. We so held in an identical case, Frances v. City of Benton, 240 Ark. 738, 401 S.W.2d 729 (1966).
We cannot, however, sustain the appellant's further argument that the charge should be dismissed because there is no such crime as "driving while intoxicated, second offense." Even though the jury should not initially be told about that aspect of the case, the accused cannot complain about the reference in the information to a second offense. Quite the contrary, it is essential that the State make that fact known to the accused, so that he may have an opportunity to dispute the assertion of a prior conviction. The information in the case at bar seems to be amply clear to serve its purpose, but if the defendant had difficulty in understanding it his remedy was to ask for a bill of particulars. Ark. Stat. Ann. 43-1006 (Repl. 1964).
Reversed.
HARRIS, C.J., not participating.