Brownson v. State

• Decision Date: 20 December 1909
• Citation: Brownson v. State, 123 S.W. 762, 93 Ark. 20 (Ark. 1909)
• Parties: BROWNSON v. STATE
• Court: Arkansas Supreme Court

123 S.W. 762

93 Ark. 20

BROWNSON v. STATE

Supreme Court of Arkansas

December 20, 1909

Appeal from Benton Circuit Court; Joseph S. Maples, Judge; affirmed.

Judgment affirmed.

J. A Rice, for appellant.

The mere keeping of malt tonic for sale openly and without the aid or intervention of a device of some kind is not unlawful.45 Ark. 173.The stuff sold or kept for sale must contain the elements necessary to constitute an intoxicating liquor in such form as it may be used as a beverage.69 Ark. 361.

Hal L Norwood, Attorney General, and C. A. Cunningham, Assistant for appellee.

To sell malt liquor indirectly, as by furnishing it as a medicine, rather than directly over the counter, is a device, pure and simple, such as the law was intended to prohibit.22 S.W. 370;85 N.W. 12;Black on Intox. Liq., § § 405 and 456.That the officers found either liquor or a United States license on the premises searched makes a prima facie case against the defendant.77 Ark. 143;83 Ark. 102;88 Ark. 393.The law forbids the maintaining of a place where liquors are either sold or given away.Kirby'sDig., § § 5140 to 5148;86 Ark. 567.The statute prohibits the sale of such drinks as a beverage, whether intoxicating or not.Kirby'sDig., § 5093;56 Ark. 444;69 Ark. 360.An objection to an instruction cannot be heard here for the first time.1 Ark. 349.

OPINION

MCCULLOCH, C. J.

Appellant was arrested and tried before a justice of the peace in Benton County upon information filed by the prosecuting attorney charging him with violating the "blind tiger"statute.In the information appellant is charged with using and controlling a certain house in the town of Monte Ne in which he is engaged in conducting a drug business, and that openly and secretly by means of device he unlawfully did sell and give away, and cause to be sold and given away, and kept and allowed to be kept for sale and to be given away, alcoholic, ardent, vinous, malt and fermented liquors and intoxicating spirits and compounds, etc.He was convicted before the justice of the peace, and on appeal to the circuit court a trial before a jury resulted in a conviction, and he appeals to this court.

Upon the filing of the information before the justice of the peace, a warrant was issued for the arrest of appellant, and an order for the search of his premises, and, upon search being made, the officers found in the house a large number of bottles of liquor called "Shuster's Malt and Hop Liquid," stored under the counter.The bottles were in a barrel, which originally contained 100 bottles, but which had only 80 bottles in it when found.This liquor was proved to be nothing more nor less than beer, or, as the witnesses describe it, a cheap grade of beer.It is also conceded to contain a small per cent. of alcohol.The officer also found in the house a special tax stamp issued by authority of the United States to appellant, denoting the payment of special tax on the sale of liquor.This receipt was exhibited to the officers by appellant.The statute under which appellant was tried is as follows:

"Sec. 5140.Any person owning or using or controlling any house or tenement of any kind who shall sell or give away, or cause or allow to be sold or given away, or keep or allow to be kept for sale or to be given away, any alcohol, ardent or vinous spirits or malt liquors, or any compound or tincture commonly called bitters or tonics whether the same be sold or given away openly or secretly, by such device as is known as 'the blind tiger,' or by any other name or under any other device, shall be deemed guilty of a misdemeanor."

"Sec. 5143.Whenever any person shall file with any justice of the peace, or the mayor of any town or city, a statement, under oath, that he has reason to believe, and does believe, that the person named in the affidavit has violated any of the provisions of this act, it shall be the duty of the prosecuting attorney, or the attorney so appointed to represent him or the State, to file an information before said justice of the peace or mayor, who shall issue thereon a writ for the arrest of the person so charged and take him before the officer issuing such writ for trial."

"Sec. 5144.If the person making the affidavit shall state the house, room or place in which he believes the things herein prohibited are sold or given away, the officer to whom the writ is delivered shall forthwith enter such house and the different rooms and apartments therein whether opened or closed, whether by day or by night, and search for such spirits or liquors; and if any be found therein, or a United States license to sell such liquors, it shall be prima facie...