Burke v. State

Decision Date10 December 1962
Docket NumberNo. 5049,5049
PartiesPaul BURKE, Appellant, v. STATE of Arkansas, Appellee.
CourtArkansas Supreme Court

Donald Poe, Waldron, for appellant.

J. Frank Holt, Atty. Gen., by Milas H. Hale, Asst. Atty. Gen., Little Rock, for appellee.

JOHNSON, Justice.

This is an appeal from a conviction for possession of intoxicating liquor in dry territory for purposes of sale.

On February 9, 1962, appellant Paul Burke, while riding as a passenger in an automobile driven by one Gerald Oglesby in Sevier County, was arrested by officers attached to the Weights and Standards Division of the Department of Revenues. Oglesby was driving south on Highway 71 about five miles south of DeQueen, where the officers were temporarily stationed, when he was stopped. After examining their drivers licenses, the officer in charge demanded the key to the trunk of the car, where they found nine cases of jars apparently containing whiskey. Appellant was charged with unlawfully possessing 54 gallons of intoxicating liquor in a dry county for purposes of sale, as a third offender, under the felony provisions of Ark.Stats. § 48-811.1. Upon conviction, he was sentenced to the penitentiary for one year. The testimony is undisputed that Oglesby was not speeding or violating any other traffic laws when he was stopped, and it is also undisputed that the officers had no search warrant. One officer testified that the car looked heavily loaded and that he thought appellant was drunk, so they decided to 'check the car'. Both arresting officers testified that there was a strong smell of wild-cat whiskey in and about the car, and that they knew appellant had a reputation for dealing in whiskey in Polk County.

Appellant relies on four points for reversal of his conviction. Appellant's first point is: The alleged prior convictions were under a different act and section of the statutes from the information in the instant case, and were for a different crime, that is, selling instead of possessing for purposes of sale. It is unquestioned that criminal statutes must be strictly construed in favor of the defendant, Hughes v. State, 6 Ark. 131, 1 Eng. 131, and in that vein we examine the statute under which appellant was convicted. From examination of the record, we are unable to determine under what specific statute the appellant's prior convictions were based, but we note that the convictions were subsequent to the passage of Act 395 of 1953 (Ark.Stats. § 48-811.1) and appellant was charged and convicted of crimes which are crimes enumerated by this statute, i. e., sale of intoxicating liquor or beverage. We are, therefore, unable to say that appellant was improperly charged under the felony provisions of Act 395.

Appellant's second point urged for reversal is that no competent proof was offered that the alleged liquor was intoxicating liquor prohibited by law. In the case at bar, the arresting officers and the sheriff of Sevier County (who had custody of the nine cases from the time appellant was arrested) testified that they determined it was liquor from the smell. The cases of liquor were admitted into evidence at the trial. In Burris v. State, 172 Ark. 609, 290 S.W. 66, this court stated:

'Error of the court is assigned in permitting witness Hayden to testify that he identified the liquor as whiskey by the smell. The opinion of the witness, based upon the smell of the liquor, was competent evidence, and its weight [was] a question for the jury. It cannot be said, as a matter of law, that the evidence of the identification of intoxicating liquor must rest upon more substantial basis than that of the sense of smell.'

See also Burns v. State, 179 Ark. 1, 13 S.W.2d 820; Hunter v. State, 180 Ark. 613, 22 S.W.2d 40; Freyaldenhoven v. State, 217 Ark. 484, 231 S.W.2d 121; Fuller v. State, 179 Ark. 913, 18 S.W.2d 913; and 78 A.L.R. 439. The evidence was competent, and its weight was a question for the jury.

Appellant's third point, that the evidence was obtained by illegal search and seizure and should have been excluded, has given this court considerable concern. In Clubb v. State, 230 Ark. 688, 326 S.W.2d 816, it was stated:

'The right to be secure against unreasonable searches is guaranteed by Art. 2, Sec. 15 of our Constitution and also, in essentially the same language, by the 4th Amendment to the United States Constitution, yet our Court has followed a rule at variance with the Federal rule regarding the admissibility of evidence obtained by search without a warrant. After careful consideration we have concluded that we will re-examine our former decisions in this connection with a view to changing our announced rule when the question is properly presented to us again.' [Emphasis ours.]

In the light of this caveat, we have thoroughly examined the record and authorities cited and not cited by the parties. Two cases which are of compelling interest because of the similarity of the fact situations with the instant case are Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, and Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879. In both cases the United States Supreme Court held that, under the Fourth Amendment, a valid search of a vehicle moving on a public highway may be had without a warrant, but only if probable cause for the search exists....

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12 cases
  • Hill v. State
    • United States
    • Arkansas Supreme Court
    • December 4, 1972
    ...this conclusion, we are influenced by the rule that a criminal statute must be strictly construed in favor of one accused. Burke v. State, 235 Ark. 882, 362 S.W.2d 695, cert. denied, 373 U.S. 922, 83 S.Ct. 1523, 10 L.Ed.2d 421. Nothing may be left to intendment and all doubts must be resolv......
  • Perez v. State
    • United States
    • Arkansas Supreme Court
    • October 4, 1976
    ...considered with other information tending to cause the officer to believe that there was contraband in the automobile. See Burke v. State, 235 Ark. 882, 362 S.W.2d 695, cert. den. 373 U.S. 922, 83 S.Ct. 1523, 10 L.Ed.2d 421. See also, People v. Bringardner, 233 Mich. 449, 206 N.W. 988 (1926......
  • Moore v. State
    • United States
    • Arkansas Supreme Court
    • June 3, 1968
    ...of the automobile offended against the law. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Burke v. State, 235 Ark. 882, 362 S.W.2d 695; Mann v. City of Heber Springs, 239 Ark. 969, 395 S.W.2d 557. For the reasons herein stated, we find that the second search was......
  • Gibbs v. State
    • United States
    • Arkansas Supreme Court
    • February 4, 1974
    ...it was imposed upon state courts by the United States Supreme Court. See Clubb v. State, 230 Ark. 688, 326 S.W.2d 816; Burke v. State, 235 Ark. 882, 362 S.W.2d 695; Mann v. City of Heber Springs, 239 Ark. 969, 395 S.W.2d 557, 559 (Johnson, J., concurring). The propriety of the exclusionary ......
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