Herron v. State

• Decision Date: 15 December 1888
• Citation: 10 S.W. 25,51 Ark. 133
• Parties: HERRON v. STATE
• Court: Arkansas Supreme Court

10 S.W. 25

51 Ark. 133

HERRON v. STATE

Supreme Court of Arkansas

December 15, 1888

APPEAL from Monroe Circuit Court, M. T. SANDERS, Judge.

This was a prosecution before a justice of the peace, under sec 4524, Mansfield's Digest, for selling whiskey within three miles of the Methodist church in Brinkley in the county of Monroe. The appellant was convicted and appealed to the circuit court, where he was again convicted and fined and appealed to this court. The case was tried upon an agreed statement of the facts, in substance as follows: The appellant was a licensed liquor dealer, doing business at Newport, in Jackson county, more than three miles distant from the Methodist church at Brinkley; that on the day of May, 1887, he was in Brinkley soliciting orders for whiskey that he then and there accepted an order from one, Mays, for one-half gallon of whiskey, for which Mays then paid him in cash $ 1.50; that the whiskey was at the time in barrels unappropriated in Newport; that the appellant had no whiskey in Brinkley; that it was agreed at the time that the appellant should cause the whiskey to be measured out in Newport, put into a jug, address it to Mays and deposit it in the office of the Southern Express Company at Newport to be transported to Brinkley and delivered to Mays, he paying the charges for transportation--all of which was done. It was agreed that the sale of whiskey was regularly prohibited within three miles of the Methodist church at Brinkley by order of the county court of Monroe county. This agreed statement was made a part of the record; a jury was waived and the case submitted to the court; the court found that the sale was at Brinkley, and reduced its findings to writing the appellant was convicted; he moved for a new trial, because the finding of the court was contrary to the evidence; this was overruled, and he accepted and appealed.

The bill of exceptions sets out the motion for a new trial and the conclusions of fact.

Judgment reversed and cause remanded.

Franklin Doswell, for appellant.

The sale was at Newport. 43 Ark. 353. The price was paid in Brinkley; but the payment of the price does not pass title to the property as long as anything has to be done by the seller to designate the thing sold. Benjamin on Sales, secs. 324, 325.

The effect of the transactions at Brinkley was to form an executory agreement for a sale and not to make a sale of a specific half gallon of whiskey. Until the parties are agreed upon the specific individual goods, the contract can be no more than a contract to supply goods answering a particular description. Ib., sec. 352. This doctrine is approved in this state. Beller v. Block, 19 Ark. 593; Upham v. Dodd, 24, Ib., 545; Jones v. Pearce, 25 Ib., 545. The sale was not complete until the goods were measured, put in the jug, labeled and addressed to the consignee and deposited with the carrier for transportation by direction or agreement between the parties. Burton v. Baird, 44 Ark. 557. In Yowell v. State, 41 Ark. 355, the goods were delivered by the seller himself within the prohibited district. Criminal statutes are construed strictly. No case is brought by construction within the statute, unless completely within its word. State v. Graham, 38 Ark. 519. Hence, an executory contract for a sale cannot be construed to be a sale. The sale was at Newport, where the goods were delivered to the carrier by agreement of the parties.

Dan W. Jones, Attorney General, for appellee.

The contract of sale and payment of the money were at Brinkley. Nothing remained to be done but ship the goods. The minds of the parties had assented to the present purchase and sale of a specific chattel, which could be clearly identified and separated, and the sale was on no condition nor contingencies, and such possession was given as the parties could under the circumstances. See 35 Ark. 197. The vendee acquired the right of property and the right of possession at Brinkley. See State v. Carl, 43 Ark.

The object of the "three mile law" was to prohibit any kind of a sale.

OPINION

COCKRILL, C. J.

The question in this case is whether the sale of a half gallon of whiskey, for which the appellant is prosecuted, was made at Newport, in Jackson county, or at Brinkley, in Monroe county. The prosecution is for a sale at the latter place, where the three mile law was in force; and, if the sale was made there the conviction is right. But an executory contract to sell is not punishable under the three mile law. Carl & Tobey v. State, 43 Ark. 353; Berger v. State, 50 Ark. 20. "I cannot construe a penal statute which punishes a sale," says Judge Curtis in Sortwell v. Hughes, 1 Curt. 244, 22 F. Cas. 801, "so broadly as to hold that it applies to a mere executory contract for a...