Crosby v. State

• Decision Date: 29 May 1922
• Docket Number: 23
• Parties: CROSBY v. STATE
• Court: Arkansas Supreme Court

241 S.W. 380

154 Ark. 20

CROSBY v. STATE

No. 23

Supreme Court of Arkansas

May 29, 1922

Appeal from Jackson Circuit Court, Dene H. Coleman, Judge; reversed.

Judgment reversed and cause remanded.

G A. Hillhouse and Gustave Jones, for appellant.

J S. Utley, Attorney General, Elbert Godwin and Wm. T. Hammock, Assistants, for appellee.

WOOD J. MCCULLOCH C. J., dissenting.

OPINION

WOOD, J.

1. Appellant was indicted for the crime of selling and being interested in the sale of intoxicating liquors. He demurred to the indictment on the ground that the court was without jurisdiction because the 18th amendment to the Federal Constitution and the Federal statute (Volstead act) superseded the State law under which appellant was indicted. The court overruled the demurrer.

This court, after an exhaustive review of the authorities upon the subject, has decided the precise question in the recent case of Alexander v. State, 148 Ark. 491, 230 S.W. 548, holding that the 18th amendment and the Volstead act "did not impair the integrity of any existing State statute to enforce prohibition, nor interfere with the enactment of any future legislation by the State for that purpose." This means, of course, that the State statute prohibiting the sale of liquor is not repealed or superseded by the 18th amendment or the Volstead act; for, if this amendment and this act superseded the State statute prohibiting the sale of liquor, then the integrity of such statute is not only impaired but destroyed. In Alexander v. State, supra, we concluded that the statute under which the appellant was convicted "is a valid and subsisting law." We adhere to that decision.

2. Witness Smith was called as a witness for the State and testified that he never purchased any whiskey from the appellant on the 10th of September, 1921, or at any other time within three years before the filing of the indictment. The witness was handed a statement purporting to be his testimony taken before the grand jury, and he testified that he signed the statement; that he read the same or it was read to him before he signed it. The witness stated that he testified before the grand jury that three or four years ago he bought some whiskey from the appellant, but that he did not buy any whiskey from him on the 10th of September, 1921. Thereupon, the record shows the following occurred: "By Mr. Williamson (prosecuting attorney). I ask to have this witness held for perjury. This is all the State can do." By the court: "All right, the witness may stand aside. Mr. Sheriff, you will hold this witness under a thousand dollar bond for perjury; let the prosecuting attorney file information against him. He is in the custody of the sheriff." (To which action, ruling and statements on the part of the prosecuting attorney and on the part of the court, in the presence and hearing of the jury, the defendant at the time excepted, and asked that his exceptions be noted of record, which is accordingly done).

The bill of exceptions further recites as follows: "And thereupon, during the closing argument of the prosecuting attorney, Hugh U. Williamson, and after the defendant's counsel had made their argument to the jury, Mr. Williamson, the prosecuting attorney, stated to the jury among other things in his argument, as follows: 'Here is Mr. Crosby, he has been engaged in selling liquor out there for a good while, for a long time, and he has gotten caught."

Objection by counsel for the defendant to the above statement, and counsel for defendant requests the court to instruct the jury not to consider such argument, and to rebuke the prosecuting attorney for making such statement. Which the court fails to do, but remarks: 'The jury will have to be the judges of the evidence.' (To which refusal of the court to so instruct the jury and to rebuke the prosecuting attorney, the defendant at the time excepted and asked that his exceptions be noted of record, which is accordingly done). And thereupon, during the further argument, in closing for the State and when the defendant had no opportunity for reply, the prosecuting attorney, among other things, stated to the jury as follows: 'You can see the straits the defendant has gone to when you saw the old man Smith perjure himself here.' Objection by counsel for defendant to the above argument by the prosecuting attorney sustained by the court, and the court told the jury that the above was improper argument on the part of the prosecuting attorney. (But owing to the prejudicial nature of such argument, regardless of the court's ruling and instruction to the jury, the defendant desires to except to the argument, and asks that his exceptions be noted of record, which is accordingly done).

"And thereupon, the prosecuting attorney during the further argument for the State in closing his case and when the defendant had no opportunity for replying, made, among other statements, the following: 'Old man Smith bought some whiskey from him (defendant) away back sometime ago, and that goes to establish his reputation.' Objection by counsel for defendant to the above statement by the prosecuting attorney overruled by the court. (To which ruling of the court and to which argument of the prosecuting attorney the defendant at the time excepted and asked that his exceptions be noted of record, which is accordingly done)."

Section 23 of article 7 of our Constitution provides that "judges shall not charge juries with regard to matters of fact, but shall declare the law." C. & M. Digest, p. 79. This is a mandatory provision of the Constitution, and the numerous cases of this court collated by the digesters under the above section show how important it is in the administration of justice under our juridical system that trial judges observe the above mandate of the Constitution. Excerpts from one or two of the cases will suffice to show what the mind of the court has been, and still is, upon the above provision, and that any departure from it by trial judges must inevitably result in a reversal of their judgements.

In State v. Wardlaw, 43 Ark. 73, Justice SMITH, speaking for the court, said: "The circuit court committed an error in advising the attorney for the State, in the presence of the jury, to drop the prosecution for want of evidence. Our Constitution forbids judges to charge juries with regard to matters of fact."

Judge BATTLE, speaking for the court, in the case of Sharp v. State, 51 Ark. 147, 10 S.W. 228, said: "In all trials the judge should preside with impartiality. In jury trials, especially, he ought to be cautious and circumspect in his language and conduct before the jury. He should not express or intimate an opinion as to the credibility of a witness or as to controverted facts. For the jury are the sole judges of fact and the credibility of witnesses; and the Constitution expressly prohibits the judge from charging them as to the facts. The manifest object of this prohibition was to give to the parties to the trial the full benefit of the judgment of the jury as to facts, unbiased and unaffected by the opinion of judges. Any expression or intimation of an opinion by the judge as to questions of fact or the credibility of witnesses necessary for them to decide in order for them to render a verdict would tend to deprive one or more of the parties of the benefits guaranteed by the Constitution, and would be a palpable violation of the organic law of the State."

In Catlett v. Ry., 57 Ark. 461 at 461-466, 21 S.W. 1062, Chief Justice COCKRILL, speaking for the court, said: "This provision shears the judge of a part of his magisterial functions, but it confers no new power upon the jury. * * * The Constitution has not altered their province. It commands the judge to permit them to arrive at their conclusion without any suggestion from him as to his opinion about the facts."

In the recent case of Martin v. State, 130 Ark 442, 197 S.W. 861, a witness whose testimony tended to prove that the appellant was not guilty of the crime charged was arrested in the presence and hearing of the jury, by order of the court directing the sheriff to take charge of the witness and hold him to bail in the sum of $ 500 to answer the charge of giving away whiskey, etc. This court held that the conduct of the court constituted prejudicial error, and we quoted from the case of Golden v. State, 75 Miss. 130, 21 So. 971, as follows: "It is very easy to order such witness into custody, and to do it 'immediately,' without the knowledge of the jury. The testimony in this case is exceedingly...