Bell v. State
| Decision Date | 21 February 1910 |
| Citation | 125 S.W. 1020,93 Ark. 600 |
| Parties | BELL v. STATE |
| Court | Arkansas Supreme Court |
Error to Sebastian Circuit Court, Greenwood District; Daniel Hon Judge; affirmed.
Judgment affirmed.
C. T Wetherby, for appellant.
1. The venue was not proved. If it be conceded that the court can take judicial notice that cities and incorporated towns in the State are within the jurisdiction of any particular court, it nevertheless could not take judicial notice of collections of houses, although they may have a name by which they are locally known. "Old Jenny Lind" or "Mine 18" is not found on any map, and is not even a postoffice. Bonanza is on the State line, and there is nothing in the record to show that Old Jenny Lind or Mine 18 may not be in Oklahoma, or in the Fort Smith District. 7 Ark 512; 100 Va. 860; 106 Cal. 690.
2. The verdict is contrary both to the law and the evidence.
The indictment charges defendant with selling liquor without license. There is no allegation that he sold by agent. The evidence would sustain a verdict of guilt on the part of Peet, but the fact that he drove a wagon at Bonanza for defendant, and his bare statement to Blackard that the beer, team and wagon belonged to appellant, were not sufficient to connect appellant with this transaction. There is also a variance between the indictment and the proof, in this: he is charged with selling liquor at Jenny Lind, and is met at the trial with proof of a sale at a different place. 12 O. St. 387; Black on Intox. Liquors, § 516.
3. It was error to charge the jury to find appellant guilty if they found that he sold whisky at Old Jenny Lind. There was no proof that whisky was sold.
4. When the appellant requested the court to instruct the jury that it was necessary for the State to prove beyond a reasonable doubt that the man who delivered the beer was the agent of appellant, before the latter could be convicted, it was error to strike out of the instruction the words "beyond a reasonable doubt." Agency was the only question in the case, as, under the proof, there was no doubt of Peet's guilt. When these words were struck out, the jury were left with no guide whatever as to the burden resting upon the State.
Hal L. Norwood, Attorney General, and Wm. H. Rector, Assistant, for appellee.
1. The venue is sufficiently established by the proof. It is not necessary that it be proved beyond a reasonable doubt. A preponderance of the evidence is sufficient.
2. If Peet acted as appellant's, agent in the sale of the liquor, appellant is criminally liable. Such agency is sufficiently shown in the evidence.
3. There is no error in the instructions. As to the use of the word "whisky" in the instructions, it was not prejudicial, and moreover, if objectionable, it should have been met by a special request for instruction, so as to call the trial court's attention to it.
4. If a preponderance of the evidence showed the agency of Peet, that was sufficient to establish such agency. Nevertheless, under the proof, the jury would have been warranted in saying that Peet was appellant's agent in the transaction, beyond a reasonable doubt.
The appellant was convicted of the offense of selling liquor without license in violation of section 5112 of Kirby's Digest, and seeks by this appeal a reversal of the conviction. The indictment in effect charged that the appellant did, in 1908, unlawfully sell and was interested in the sale of ardent and malt and fermented liquors in Jenny Lind in the Greenwood District of Sebastian County without first having procured a license therefor.
The evidence tended to establish the following facts: The appellant was in 1908 engaged in the saloon business at Bonanza, which is in said Greenwood District, a short distance from Jenny Lind, which is also located in said district; and he was the agent of the Cook Brewing Company; at this time one Joe Peet was working for appellant, and was employed in driving appellant's wagon in the delivery of beer and other liquors, and on a number of different occasions delivered kegs of beer in appellant's wagon in Jenny Lind.
The prosecuting witness, who resided in "old" Jenny Lind, as he called the town or in Jenny Lind, as the town is called by another witness, gave an order to Joe Peet for beer, and in a few days thereafter Joe Peet delivered the beer to him at Jenny Lind in the appellant's wagon, and there received the payment therefor. Upon cross-examination this witness stated that Joe Peet told him he was then working and delivering the beer for appellant.
It is earnestly urged by counsel for appellant that there is not sufficient evidence adduced in this case to sustain the verdict of the jury. The owner or proprietor of a saloon is responsible for the illegal sales of liquor made by his servants and agents within the scope of their general employment; and under the above section of Kirby's Digest the employer is criminally liable if he makes an unlawful sale of liquor by such servant or agent or if he is interested in such sale. As is said in the case of Robinson v. State, 38 Ark. 641: Lewis v. State, 21 Ark. 209; Waller v. State, 38 Ark. 656; Edgar v. State, 45 Ark. 356; Mogler v. State, 47 Ark. 109, 14 S.W. 473.
But it is claimed that there is no proof that Joe Peet was the servant or agent of appellant. It is true that agency is a fact the proof of which must be made by the party affirming it. The declarations of the alleged agent are not admissible to prove the fact of the agency, but it must be established by other evidence. Carter v. Burnham, 31 Ark. 212; Holland v. Rogers, 33 Ark. 251; Chrisman v. Carney, 33 Ark. 316; Howcott v. Kilbourn, 44 Ark. 213; Turner v. Huff, 46 Ark. 222; Beekman Lbr. Co. v. Kittrell, 80 Ark. 228, 96 S.W. 988.
But the fact of agency need not be proved by direct evidence. Any evidence which is otherwise competent and has a tendency to establish the agency is admissible, and it becomes then the province of the jury to pass upon the weight and sufficiency of it. Circumstanctial...
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