Ballentine v. State

• Decision Date: 11 December 1886
• Citation: 2 S.W. 340,48 Ark. 45
• Parties: BALLENTINE v. STATE
• Court: Arkansas Supreme Court

2 S.W. 340

48 Ark. 45

BALLENTINE v. STATE

Supreme Court of Arkansas

December 11, 1886

APPEAL from Garland Circuit Court, Hon. J. B. WOOD, Judge.

Judgment affirmed.

L Leatherman, and G. W. Murphy, for appellant.

The indictment is uncertain. It charges that the defendant kept a "grocery or dram shop." The words have not the same meaning.

The word "grocery" is not mentioned in sec. 1856 Mansf. Dig., nor is it an offense to permit gaming in a grocery.

The court should have given all of section 1856 in its charge to the jury.

The court, on its own motion, gave in charge to the jury that they could assess a fine against the defendant not exceeding $ 250, or could imprison him not exceeding twelve months, or they might do both.

The jury rendered a verdict of guilty, finding defendant $ 60.

It is evident, from the weak nature of the evidence, its want of application, the length of time the jury remained out, that this was something of a compromise verdict, and the defendant was prejudiced thereby.

The action of the court in reducing the same was not proper in a criminal trial. His instructions as to the amount of fine and imprisonment were erroneous, and the defendant was entitled to a trial, under the law, as it was.

It is not reasonable to suppose that the verdict of the jury would have been as rendered, or that it would have been for $ 50 had the court, in the instructions, limited them to that amount.

The penalty for violating section 1856 is set out in section 1859. This chapter of Mansfield's Digest does not contain the law as it is. (See sections 9 to 14, chapter 148, Revised Statutes; in Gould's Digest, chapter 169, sections 14-19.)

It was error in the court to forfeit the license under the proof the instructions and the finding of the jury.

Under the instructions of the court the jury may have found the defendant guilty of committing the offense charged in the indictment at any time within one year prior to the 10th of April, 1886. Now, if the offense was committed before the 1st of January, 1886, then the license issued on or after 1st of January, 1886, should not be canceled, no matter if Ballentine was interested in the same.

The proof does not show that Ballentine had a license, or was interested in the license of Thatcher, further than the rent of his building. This is not sufficient interest on which to warrant a conviction for a fine, much less a forfeiture.

First--It is necessary for the defendant to have a license to keep a tavern or dram-shop (not grocery).

Second--And he must knowingly and unlawfully permit some one to play at a game of craps within his house.

There is no evidence showing that a game of craps, or a game of hazard with dice, commonly called craps, was played in the house.

Dan W. Jones, Attorney-General, for appellee.

The appellant was indicted for an infraction of sec. 1856 of Mans. Dig., in permitting gaming in his "dram-shap or grocery." It is argued that the use of the word "or" is fatal in the indictment on account of duplicity and uncertainty. The word "grocery" not appearing in the above cited statute, it was no offense to permit gaming therein, and it was mere surplusage to place it in the indictment. Shepherd v. The State, 39 Ark. 39; Bish. Stat. Cr., 426-7.

Beside this the proof showed that the place where the gaming was done was the dram-shop, and not any grocery store, and it was for this the jury found.

The appellant had the license from the United States in his own name, while the state and county license was in the name of Thatcher. The court found that appellant was the real party holding said last mentioned license, and revoked it. If this finding of fact by the court was correct and the appellant was guilty as charged, this was but carrying out the law. If Thatcher really owned the license then appellant is in no manner hurt by its revocation, and Thatcher is left to proceed as he may see fit. The judgment should stand.

OPINION

COCKRILL, C. J.

Ballentine was indicted for permitting gaming in his "dram-shop or grocery." It is argued that the use of the words "dram shop" and "grocery," accompanied by the disjunctive "or," renders the indictment uncertain. The word "grocery" does not appear in the statute which defines the offense. (Mansf. Dig., sec. 1856). If it is intended as a synonymon for "dram-shop" it is harmless. If it was used in a different sense it is surplusage merely, and should be disregarded, the real offensive being the permitting of gaming in the dram-shop.

II. The court instructed the jury that the maximum punishment that could be meted out to the defendant, if he was guilty, was a fine of $ 250 and imprisonment for not exceeding twelve months, and refused to read to them that portion of the statute which works a forfeiture of the...