Benson v. State

• Decision Date: 26 September 1921
• Docket Number: 123
• Citation: 233 S.W. 758,149 Ark. 633
• Parties: BENSON v. STATE
• Court: Arkansas Supreme Court

233 S.W. 758

149 Ark. 633

BENSON v. STATE

No. 123

Supreme Court of Arkansas

September 26, 1921

Appeal from Polk Circuit Court; James S. Steel, Judge; affirmed.

Judgment affirmed.

Norwood & Alley, for appellant.

The testimony introduced was not sufficient to justify a conviction. Even if there was an indictment for conspiracy and Briscoe was shown to have been connected with the offense, it could not be used against the defendant until there was evidence first showing the conspiracy between them. 77 Ark. 444; 78 Ark. 284; 95 Ark. 460; 87 Ark. 34.

The court erred in admitting the evidence of Tisdale, Hazel and Earl Tisdale, as to what was found on the premises of defendant, as they had no warrant, and the search and seizure was unlawful, and any evidence so obtained was unlawfully obtained and not admissible. Amendment No. 4 to Constitution of U. S.; 270 F. 578; 251 U.S. 385; 232 U.S. 383; 233 U.S 481; 252 F. 414.

The court erred in not allowing defendant to inquire of the witness, Tisdale, who wrote the unsigned letter, giving diagram and information leading to his arrest.

The court erred in instructing the jury as to the weight of the evidence. 63 Ark. 457. Instructions must not assume facts which are to be determined by the jury. 58 Ark. 504; 71 Ark 38; 48 Ark. 396.

J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, for appellee.

1. The evidence is legally sufficient to justify a conviction.

2. The court did not commit error in allowing the witness, Hazel, to testify relative to finding a cooling trough and piece of piping, used for a worm to a still, near a path leading from the home of defendant to the home of Briscoe. No objection being made to this testimony at the time by defendant, an objection, made for the first time on appeal, will be unavailing. 123 Ark. 66.

3. The trial court did not err in admitting the evidence of the Tisdales and Hazel, witnesses for the State, as to what they found on the premises of the appellant. 1 Greenleaf on Ev. § 254a; 157 Mass. 519, 32 N.E. 910; 165 Mass. 11, 42 N.E. 329; 166 Mass. 370, 44 N.E. 503; 192 U.S. 585; 119 U.S. 340, 30 L.Ed. 421, 7 S.Ct. 225; 127 U.S. 700, 32 L.Ed. 283, 8 S.Ct. 1204.

4. There was no error in the court's refusal to allow defendant to inquire of the witness, Tisdale, who wrote the unsigned letter giving diagram and information leading to defendant's arrest.

5. The court did not err in instructing the jury as to the weight of the evidence.

OPINION

SMITH, J.

Appellant was convicted of making intoxicating liquors, and has appealed. He strongly insists that the testimony is insufficient to support the verdict; that the court erred in admitting testimony and in instructing the jury and in permitting a witness named Tisdale to remain in the courtroom during the progress of the trial when other witnesses had been put under the rule.

Testimony tending to support the verdict was offered to the following effect: J. T. Tisdale, a Federal prohibition enforcement officer, received information that a still was being operated. He applied to, and received from, the sheriff of the county a diagram of appellant's premises, as Tisdale was not familiar with the roads in the section of the county where the still was supposed to be located. Accompanying this diagram was a letter of information and directions, which was not signed. Tisdale went to appellant's home, and found appellant there with his wife. Tisdale was accompanied by his son and by one Hazel, a constable of the county. These officers searched appellant's house, and found a quart fruit jar about half or two-thirds full of moonshine whiskey. Upon further search several jars, jugs and bottles containing small quantities of whiskey were found, and still other receptacles were found which were redolent of whiskey. Before this search was made, appellant had stated that there was no whiskey in his house. The officers testified that about one hundred and twenty-five yards from appellant's residence and on his farm they found a cave which contained a still or where a still had been. The place was afire and had evidently been burning for some hours. They found there six barrels of mash, some of the barrels full and others which had been burned were only partly full. The officers took appellant and his wife to the still and asked what it meant. Appellant's wife, in appellant's presence, suggested that the still had been placed there by some enemy of her husband, because he was, as she expressed it, the "law," meaning thereby that her husband was the justice of the peace for that township. She made the same suggestion in regard to the whiskey in her house. Appellant's explanation of the presence of the whiskey in his home was that a doctor had prescribed and furnished this whiskey for the use of his wife.

The field between appellant's house and the still had been freshly plowed, and there were tracks of a man and woman to and from the still and appellant's house, and there was a well-beaten path from appellant's back gate to the distillery. There were fresh wagon tracks from appellant's barn gate to the still, and appellant admitted he had made these tracks doing some hauling the day before.

The officers also observed that a sweetgum bush had been cut about four feet from the distillery walls. They also saw in appellant's smokehouse three one-gallon jugs, each containing a little whiskey, and these jugs each contained a stopper made from a sweetgum bush of a size corresponding to the piece that was cut out of the bush near the distillery.

Tisdale testified that, as a prohibition enforcement officer, he had raided or captured about five hundred stills, and was familiar with the manufacture of whiskey, and that the mash or beer found at appellant's place was intoxicating and ready to run. The officers further testified that some of the mash or beer that was found at the still had been boiled off or run through the still.

Hazel, the constable, testified that he found, between the homes of appellant and one Briscoe, which were about half-a-mile apart, a cooling trough and pipe bent for a worm for a still, and that a trail led from appellant's home to Briscoe's house. The trough and piping were found about fifty or seventy-five yards from this path and about half a mile from appellant's house.

Objections were made to the admission of most of this testimony. But we think it was all competent, and that it established the existence of a partly dismantled still, and we think the jury was warranted in drawing the inference that whiskey had been manufactured at this still, and that appellant was a party to the operation of the still. It may be further added that Briscoe was the stepson and tenant of appellant.

Appellant offered the explanation that the excavation in the side of the hill--which the officers designate as a still--had been made while he was prospecting for ore, and he offered testimony tending to show that no whiskey had been made on his place, and that, if any had been made, it had been done without his knowledge or consent. The verdict of the jury reflects the fact, however, that this testimony was not credited by the jury.

Appellant was not permitted to pursue his inquiry as to the authorship of the unsigned letter giving information to the officers about the location of the still. He excepted to the ruling of the court on the ground that, if he had been permitted to pursue the inquiry as to the authorship of the letter, he might have ascertained who his enemies were. No error was committed in this respect, as the only purpose of the letter was to enable its possessor to locate the premises. It performed that function, and it was immaterial who wrote it.

Exceptions were saved to the refusal of the court to put the witness, Tisdale, under the rule along with the other witnesses.

In the case of Oakes v. State, 135 Ark. 221, 229, 205 S.W. 305, one Claude Duty, an attorney, had been specially employed to aid in the prosecution of the case then on trial. He was not placed under the rule as the other witnesses had been, and objection was made to his testimony on that account. We there disposed of the question by saying: "The question as to whether any witness, or all the witnesses, shall be put under the rule is one that addresses itself to the sound discretion of the court, and that discretion was not abused in permitting Duty to testify. Kirby's Digest, § 3142; Vance v. State, 70 Ark. 272, 68 S.W. 37; Hlass v. Fulford, 77 Ark. 603, 92 S.W. 862; St. L., I. M. & S. Ry. Co. v. Pate, 90 Ark. 135."

Tisdale made the search without a warrant, or other process, from any court...