Dale v. State

• Decision Date: 31 May 1909
• Citation: 120 S.W. 389,90 Ark. 579
• Parties: DALE v. STATE
• Court: Arkansas Supreme Court

120 S.W. 389

90 Ark. 579

DALE v. STATE

Supreme Court of Arkansas

May 31, 1909

Appeal from Faulkner Circuit Court; Eugene Lankford, Judge affirmed.

STATEMENT BY THE COURT.

This appeal is from a conviction for selling whisky within ten miles of Hendrix College. The evidence on behalf of the State tended to show that appellant sold whisky within ten miles of Hendrix College as charged.

Appellant in his own behalf testified as follows: "He took his gun and attempted to get a shot at some geese on the sand-bar that a party called Shorty went with him; that they went to Atkin's gin, where they met Will Starrett; that Will Starrett asked him if he didn't have some whisky to sell to which he replied that he did not; that Shorty, who was with him, spoke up and said that he had some; that Shorty and Starrett had some conversation, after which Starrett stated to him (Dale) that Shorty would not sell the whisky to him without the money, and asked him (Dale) if he would not stand good to Shorty for the payment of the money by him, Starrett that he agreed to do so, and that Shorty then delivered to Starrett two pints of whisky; that he (Dale) never sold Starrett any whisky, and was not interested in the whisky; that it was Shorty's whisky and not his; that he and Shorty started away, and that Starrett followed them; that when they came up with Helton in his wagon Starrett asked Helton if he did not want to buy some whisky, and that he sold Helton a pint of whisky for fifty cents; that Willse Martin came by, and that Starrett sold him two pints of whisky for one dollar; that Shorty furnished one of the pints; that Starrett went off with him and Shorty down to the sand bar where he had previously seen Starrett get some whisky, and Starrett and he stopped at this place, and Starrett got two more pints of whisky; that he had only a couple of days before that employed Shorty to work for him in managing his fishing tackle."

The court instructed the jury as follows:

"The court instructs the jury that all parties who are concerned in the commission of a misdemeanor are guilty as principals. So, if you believe from the evidence that the defendant, George Dale, within one year from filing information, aided, directly or indirectly, or assisted or encouraged the sale of whisky within ten miles of Hendrix College, you will find the defendant guilty as charged."

Appellant objected to the instruction and duly excepted.

The appellant asked and the court refused to give the following instruction: "You are instructed that if you believe from the evidence that the whisky was the property of the party called Shorty, and that the sale was made to Starrett by the party called Shorty, and that Dale merely, at the request of Starrett, stood good to Shorty for the payment of the money by Starrett, and that he was not interested in the whisky, then in that event the defendant would not be guilty," to which refusal of the court the defendant at the time excepted.

The motion for new trial assigns other errors besides those indicated supra. But the bill of exceptions does not show that any other exceptions were taken to the rulings than those mentioned.

Judgment affirmed.

U. S. Bratton, for appellant.

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

1. An objection not pressed to a ruling, or which is not preserved in the motion for new trial, will not be considered here. 73 Ark. 407; 51 Ark. 380; 25 Ark. 380.

2. The instruction requested by appellant, having no evidence to support it, was properly refused. 21 Ark. 69; 23 Ark. 730; 65 Ark. 222.

3. One who aids or assists in the sale of liquor is guilty as a principal. 83 Ill. 431; 36 Kan. 43; 113 Mich. 213; 74 S.W 323; 42 Tex.Crim. 600; 38 Id. 537; 37 Id. 505.

OPINION

WOOD, J. (after stating facts).

It has often been ruled that one who aids another in the sale of whisky contrary to law is guilty as a principal offender, no matter what subterfuge is resorted to, or what means are employed to accomplish the sale....