Crosby v. State
Citation | 241 S.W. 380 |
Decision Date | 29 May 1922 |
Docket Number | (No. 23.) |
Parties | CROSBY v. STATE. |
Court | Arkansas Supreme Court |
Appeal from Circuit Court, Jackson County; Dene H. Coleman, Judge.
O. R. Crosby was convicted of selling and being interested in the sale of intoxicating liquors, and he appeals. Reversed and remanded.
G. A. Hillhouse and Gustave Jones, both of Newport, for appellant.
J. S. Utley, Atty. Gen., and Elbert Godwin and W. T. Hammock, Asst. Attys. Gen., for the State.
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because the Eighteenth Amendment to the federal Constitution and the federal Statute (Volstead Act [41 Stat. 305]) superseded the state law under which appellant was indicted.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 Eighteenth 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 This means, of course, that the state statute prohibiting the sale of liquor is not repealed or superseded by the Eighteenth Amendment or the Volstead Act; for, if this amendment and this act superseded the state statute prohibiting the sale of liquor, then the integrity of such statute is not only impaired but destroyed.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 whisky 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 whisky from the appellant but that he did not buy any whisky from him on the 10th of September, 1921. Thereupon, the record shows the following occurred:
To such 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 exception be noted of record, which is accordingly done.
The bill of exceptions further recites as follows:
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 judgments.
In State v. Wardlaw, 43 Ark. 73, Justice Smith, speaking for the court, said:
Judge Battle, speaking for the court, in the case of Sharp v. State, 51 Ark. 147, 10 S. W. 228, 14 Am. St. Rep. 27, said:
In Catlett v. Railway, 57 Ark. 461-466, 21 S. W. 1062, 38 Am. St. Rep. 254, Chief Justice Cockrill, speaking for the court, said:
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 whisky, 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,...
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