Brooke v. State

• Decision Date: 01 June 1908
• Citation: 111 S.W. 471,86 Ark. 364
• Parties: BROOKE v. STATE
• Court: Arkansas Supreme Court

111 S.W. 471

86 Ark. 364

BROOKE v. STATE

Supreme Court of Arkansas

June 1, 1908

Appeal from Conway Circuit Court; J. Hugh Basham, Judge; reversed.

Reversed and remanded.

J. A Gillette, for appellant; W. P. Strait, of counsel.

1. The council had only such powers as were given the municipality by statute, and nowhere does the State law delegate the authority sought to be exercised. 45 Ark. 336; 49 Id. 165; 31 Id. 462; Act 1907, p. 290.

2. The court erred in its definition of drunkenness or intoxication and the remarks of the prosecuting attorney were prejudicial. 94 Ala. 441; 93 Ga. 196; 11 Cush. (Mass.) 479; 130 Ill. 234; 10 A. & E. Enc. Law, p. 276; 89 Ala. 8; 111 Id. 482; 40 Ark. 511; 34 Id. 341; 54 Id. 284; 60 Id. 610; 98 Ill. 108; 39 Md. 258; 2 Kent, Com. 451; 7 Bush (Ky.) 276; 35 Conn. 170; 22 Mo.App. 488; 20 S.W. 744 46 Mo. 414; 72 Tex. 312; 89 Va. 576; 26 Ala. 338; 2 Head (Tenn.) 289.

3. The verdict is palpably against the weight of evidence. 65 Ark. 278; 34 Id. 632; 10 Id. 492.

OPINION

HILL, C. J.

The city of Morrillton has an ordinance making it a misdemeanor for any person to appear in any public street in a drunken or intoxicated condition; and Brooke was arrested under it, and fined in the mayor's court, and again in the circuit court, and has appealed.

It is insisted that the ordinance in question is not valid. The argument is made that this ordinance goes further than the act of the General Assembly of 1907, which made it a misdemeanor for any person to appear at public gatherings in a drunken or intoxicated condition. Acts 1907, c. 112. It is true that the ordinance and the act do not cover identically the same offenses, and it is true the city could, by ordinance, adopt the act of the Legislature. But it is not compelled to do so in order to have a valid ordinance on the subject. In DeWitt v. Lacotts, 76 Ark. 250, the court sustained a similar ordinance as a valid exercise of the police power under section 5438 of Kirby's Digest. This decision is attacked; but the court is satisfied of its soundness and declines to overrule it.

The instructions of the court are criticised. The court did not attempt to give any definition of the term drunkenness as used in the ordinance, but left the condition of the defendant as to drunkenness or soberness to be determined by the jury under the evidence. It was said in Midland Valley Ry. Co. v. Hamilton, 84 Ark. 81, 104 S.W. 540, of the terms drunkenness and soberness: "In fact, it may be doubted whether these terms are susceptible to any accurate definition for practical purposes. They sufficiently define themselves, and it would have been better to leave it to the jury, without attempt at definition, to determine what the condition of the plaintiff was in this respect." The instructions given were not misleading, and the verdict, if sustained by sufficient evidence, would stand.

The evidence on the part of the city proved that appellant was drinking, and that he showed some of the signs of the effect of strong drink; but he was attending to his business in an orderly manner, and had not lost control of his faculties. The Standard Dictionary gives the following definition of drunk: "Under the...