Harris v. State

• Decision Date: 05 July 1926
• Docket Number: 106
• Citation: 285 S.W. 367,171 Ark. 658
• Parties: HARRIS v. STATE
• Court: Arkansas Supreme Court

285 S.W. 367

171 Ark. 658

HARRIS v. STATE

No. 106

Supreme Court of Arkansas

July 5, 1926

Appeal from Jefferson Circuit Court; T. G. Parham, Judge; reversed.

Judgment reversed, and cause remanded.

Toney & Smith, for appellant.

H. W Applegate, Attorney General, and J. S. Abercrombie Assistant, for appellee.

OPINION

SMITH, J.

Appellant was tried under an indictment charging him with manufacturing and being interested in the manufacture of intoxicating liquors, was convicted, and has appealed.

A still had been located, and officers were watching it to learn who were operating it. Officers Vick and McBurnett, accompanied by two citizens, crept up to the still and saw two men operating it. Vick testified that he identified both men, one being appellant, Arthur Harris, the other a man named Bob Sykes. The posse had surrounded the still, and ordered the men found operating it to throw up their hands, but, instead of submitting to arrest, they ran away. A copper still with a charcoal burner was found, and four or five barrels of mash, and about five gallons of whiskey had been run.

Without setting out the testimony of the officers further, it may be said that their testimony showed very conclusively that two men were found making whiskey, and the principal question of fact in the case is the identity of these men. Vick was positive in his identification of both appellant and Sykes, and the testimony of the other members of the posse is more or less corroborative of the testimony of Vick. There is therefore no question about the legal sufficiency of the evidence to sustain the verdict of the jury finding appellant guilty as charged. It appears, however, that Sykes had been previously tried and acquitted, and appellant denied that he was seen at the still. He also denied that he knew anything about the still or that he had ever seen it. The still was found about three-quarters of a mile from appellant's home.

A witness named Stone testified that, prior to the time the still was raided by the officers, he had lost a hog, and was looking for it in the woods, when he came upon the still, which was in full operation, and that he recognized appellant as one of the men operating it. Stone found between twenty and thirty gallons of whiskey in kegs and bottles and about seven or eight barrels of mash. He testified that the men in charge of the still ran away, after which witness got in his car and went to a schoolhouse, and from there he went to Pine Bluff, where he told the officers what he had seen.

Appellant offered testimony to the effect that, on the day the officers raided the still, he was at home working in his field.

A boy named Troy Tucker testified that he knew the afternoon when the witness Stone claimed to have been in the woods and to have seen appellant at the still, and that Stone came to the school in the afternoon before the school was dismissed for the day. This witness had not been subpoenaed in the case, and was in attendance on the trial just to hear it, as he knew the parties. As soon as the witness Tucker had thus testified the following proceedings were had: "Mr. Toney: Call Miss Jacks. If the court please, I find out there are two girls that were going to that school--(interrupted). Mr. Brockman: They have been in the courtroom all day. The Court: They have been here all day. You may let the record show, Mr. May, that the defendant offered to use these witnesses and the court denies them the right to testify; save his exceptions. Mr. Toney: I would like to state to the court what--(interrupted). The Court: Don't state that in the presence of the jury. Preserve your record outside. I will give you a chance to do that later on."

The trial proceeded, and another witness testified in support of appellant's defense, after which it is recited that the following proceedings were had: "The following proceeding was had in the court's private chamber, out of the presence and hearing of the jury: The Court: Let the record show that the witness, Miss Helen Jacks, that the defendant offered to prove by Miss Helen Jacks and Miss Gladys Hunt that they were going to the school in question; that on Thursday they saw the witness Stone at the schoolhouse, Thursday afternoon at three o'clock, the same afternoon that it is claimed that he (Stone) saw these boys in the woods. That these witnesses were not sworn along with the others, and were not put under the rule, and had been sitting in the courtroom and were not summoned as witnesses in the case; that they had been sitting in the courtroom listening to all the testimony up until that time, and that the court refused to permit them to testify, to which action of the court the defendant at the time objected, and asked to save his exceptions. Counsel for defendant did not know until a few minutes before he offered these girls as witnesses that they went to this said school in question. Let the record show further that, at the time of offering these parties as witnesses, counsel did not state to the court that they had just found out that they were in possession of this information. Mr. Toney: I want to offer our instruction number 'A,' and ask that the court give it to the jury along with the other instructions. The Court: It is refused. Mr. Toney: Note our exceptions, and, your Honor, since you refuse this instruction, we ask to be allowed to introduce additional testimony. The Court: That request will be granted. You may do that. This concludes the proceedings had in chambers out of hearing of the jury."

Thereafter Bob Sykes testified as a witness in appellant's behalf, as did also Claud Pledger, and officer McBurnett, who had previously testified, was recalled for further examination.

After the conclusion of this testimony the court proceeded to instruct the jury, and, while exceptions were saved to the instructions given, no error is pointed out in them, and we find none.

Appellant asked only one instruction, it being to the effect that testimony tending to show that appellant had been seen operating a still in July, 1925, could be considered by the jury only as "a circumstance tending to show that appellant was in the whiskey business." The indictment under which appellant was convicted charged that on the 4th day of December, 1925, he manufactured and was interested in the manufacture of intoxicating liquors.

The instruction requested by appellant was properly refused. The date referred to in the instruction was within three years of the date of the return of the indictment, and the venue was the same. In other words, the testimony was to the effect that appellant had been seen on two different occasions operating the same still, and the State had the right, as it evidently elected to do, to use testimony which would have shown two separate offenses to secure a single conviction. The testimony concerning the prior offense was admissible therefore to show that appellant was guilty of the offense charged, as a conviction could have been had if it were shown that, at any time within three years of the date of the indictment, appellant had manufactured or been interested in the manufacture of intoxicating liquors. It is true the jury might have believed that the officers who raided the still were mistaken in their identification of appellant as one of the men seen at the still, and would, no doubt, have done so had they believed the testimony tending to prove an alibi for appellant, and may, in fact, have found him guilty of making liquor on the prior occasion, but the jury had the right to do this if they found appellant had made liquor on either occasion, both occasions being within three years of the date of the indictment. Turner v. State, 130 Ark. 48, 196 S.W. 477.

We are of the opinion, however, that the court was in error in excluding the testimony of the two young ladies. Their testimony would have contradicted that of the witness Stone and it may be that the conviction was based upon the testimony of Stone, and not upon that of the officers who raided the still. As we have shown, it could have been, and for this reason no error was committed in refusing to give the only instruction which appellant requested. The witness Tucker was a pupil at the school, and testified that Stone came to the school before it was out. This testimony tended to contradict that of Stone, and the testimony of the two young ladies who were also pupils at the school would have been corroborative of that of young Tucker. The testimony was therefore relevant and material, and might have been of great value to appellant. The testimony of the young ladies was not excluded because it was irrelevant and immaterial, but because the rule had been ordered on the witnesses, and the young ladies had not been called and sworn and placed under the rule along with the other...