Berning v. State
| Decision Date | 15 June 1889 |
| Parties | BERNING v. STATE |
| Court | Arkansas Supreme Court |
APPEAL from Saline Circuit Court, J. B. WOOD, Judge.
Reversed and remanded.
G. W Murphy, for appellant.
There was no evidence that Rexhouse had or had not paid his license tax, nor as to whether appellant had any notice or knowledge as to this. The State should have been required to prove that Rexhouse had no license, in order to make out a case. 1 Gr Ev., secs. 79, 80.
John McLure, for appellant, argued the case orally.
W. E Atkinson, Attorney-General, for appellee, argued orally, and contends that the instructions are sustained by the authorities. 25 Oh. St., 381; 83 Ill. 431; 38 Ark. 518.
The appellant was convicted and fined fourteen hundred dollars for engaging in the business of selling liquors without first having paid the State and county taxes. He moved for a new trial, which was denied, and he excepted and appealed. The evidence shows that appellant kept cigars and tobacco for sale in the front room of a house, in the back room of which Geo. Rexhouse carried on the business of selling liquors; that the appellant and Rexhouse rented their rooms from the same landlord; that the customers of Rexhouse had to and did pass through the room of appellant to reach the room where Rexhouse sold liquors; that liquors were purchased in the said back room by putting money on a wheel and calling for what was wanted; that appellant had purchased it in said room, in this way; that appellant had twice advanced twenty-five dollars for said Rexhouse, to the sergeant of police of the city of Hot Springs, said sergeant having been directed by the chief of police of said city to collect that sum monthly, as he understood, for the privilege of selling whiskey in said city, from several persons whose names were furnished said sergeant by said chief of police.
This evidence was not sufficient to warrant the conviction of the appellant, because it shows nothing more than mere acquiescence of appellant in the action of Rexhouse, or mere failure of appellant to object to persons passing through his room to buy liquors from Rexhouse; and because there was no proof that Rexhouse had no license. It is a general rule that every allegation, affirmative or negative, necessary to constitute the offence charged, must be established by the prosecutor. This general rule is sometimes departed from by the courts, but only in cases where the negative averments in indictments have reference to some personal qualification peculiar to the defendants, or where the proof thereof depends upon some Written document committed to the sole custody of the person accused, or where the negative averment is particularly within the knowledge of the other party, when, if not disproved by that party, it is taken as true. State v. Wilbourne, 87 N.C. 529; Hopper v. State, 19 Ark. 143; Williams v. State, 35 Ark. 430; Flower v. State, 39 Ark. 209; 2 Jones, (N. C.) 276.
In Hopper v. State, supra...
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