Berry v. City of Springdale, 5111

• Decision Date: 14 September 1964
• Docket Number: No. 5111,5111
• Parties: , 8 A.L.R.3d 925 Homer G. BERRY, Appellant, v. CITY OF SPRINGDALE, Appellee.
• Court: Arkansas Supreme Court

Page 745

381 S.W.2d 745

238 Ark. 328, 8 A.L.R.3d 925

Homer G. BERRY, Appellant, v. CITY OF SPRINGDALE, Appellee.

No. 5111.

Supreme Court of Arkansas.

Sept. 14, 1964.

James B. Blair, Springdale, for appellant.

No brief filed for appellee.

HARRIS, Chief Justice.

The issue in this case is whether appellant, Homer Berry, was guilty of public drunkenness. On August 3, 1963, Berry was apprehended by Patrolman Bill Smith of the City of Springdale, and charged with the offense of drunkenness. Smith testified that about 1:45 A.M., he noticed appellant's truck stopped near the regular driving portion of Highway #71 in Springdale. According to the officer's testimony, the truck was not more than twenty-five feet, and not less than ten feet, from the paved portion of the highway, and was on the right of way. Smith's attention was directed to the truck because of the fact that he noticed fire in the back end of the vehicle. Upon making examination, he found appellant, apparently asleep in the cab of the truck, and when the officer opened the door, Berry almost fell out. Smith testified that he caught appellant to prevent his falling to the ground; that the latter could not stand on his feet; that he (Smith) could smell the odor of alcohol. Appellant identified himself as Major Homer Berry, stating that he was a 'rain maker.' Smith testified that he assisted Berry to the patrol car; 'I helped him by placing both of my hands under his arm pits and practically dragging him to the car.' Berry insisted that he wanted to 'stoke the burners,' ¹ but the officer could not find fuel of any kind in the back of the vehicle. According to the witness, Berry maintained that he had only 'had two beers.' Appellant was convicted in the Municipal Court of Springdale of the offense of 'Drunk on the highway,' and was fined. On appeal, the Circuit Court found appellant guilty of public drunkenness (trial by jury having been waived), and fined Berry $15.00 and costs. ²

From the judgment so entered comes this appeal.

It is first urged that the city failed to establish that appellant was guilty of any crime for which he could be lawfully prosecuted. This contention is based on the argument that Berry was not actually in a 'public place' at the time of his arrest.

The statute, in effect at the time of this offense, is Ark.Stat.Ann. § 48-943 (1947), and reads as follows:

'Any person who shall in any public place, or highway, or street, or in or upon any passenger coach, street car, or in or upon any vehicle commonly used for the transportation of passengers, or in or about any depot, platform, waiting station or room, drink any intoxicating liquor of any kind, or if any person shall be drunk or intoxicated in any public place, or in any passenger coach, street car, or other public place or building, or at any public gathering, or if any person shall be drunk and disorderly, he shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than five [$5.00] dollars nor more than one hundred [$100.00] dollars, or by imprisonment for not less than five days nor more than thirty days, or by both such fine and imprisonment.'

There is no evidence that appellant was drinking in a public place, nor is there any contention that he was disorderly. The question, therefore, is whether one sitting in a motor vehicle ten to twenty-five feet from the traveled portion of the highway is in a 'public place' as contemplated by the statute.

Under sound logic, as well as construction by other courts of statutes similar to our own, we have concluded that the answer to the above question is 'yes.' Under statutes in some jurisdictions, there is a requirement that the intoxication must be coupled with boisterous or indecent conduct before the offender can be found guilty of the offense of public drunkenness, but it will be observed that our statute contains no such provision.

Certainly, Berry was not found in a private locality, and if he had been walking (or lying) alongside the highway at the same distance, no difficult question would be presented. Webster's Third New International Dictionary defines 'public' as 'a place accessible or visible to all members of the community'. The Texas case of Walker v. State, 171 Tex.Cr.R. 379, 350 S.W.2d 561, bears some similarity to the instant cause. In that case the defendant was found asleep in his automobile in a bar ditch along the highway, apparently having gone off the edge of the culvert while attempting to make a right-hand turn. The sheriff found in the vehicle an open can of beer, which had turned over and spilled, and two unopened cans of beer. As here, the defendant contended that the evidence was insufficient to sustain a conviction, in that, at the time of the arrest, he was not in a public place. The Court of Criminal Appeals rejected this contention, and held that the evidence was sufficient to...