Hodgkiss v. State
| Decision Date | 08 January 1923 |
| Docket Number | 67 |
| Citation | 246 S.W. 506,156 Ark. 340 |
| Parties | HODGKISS v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Madison Circuit Court; W. A. Dickson, Judge; reversed.
Reversed and remanded.
No brief for appellant.
J S. Utley, Attorney General, Elbert Godwin and Wm. T. Hammock, Assistants, for appellee.
The indictment in this case reads as follows, omitting caption and formal parts:
"The said George Hodgkiss, in the county of Madison, in the State of Arkansas, on the 10th day of June, 1921, feloniously did set up a certain trough as a substitute for a still, for the purpose of using same for the production of distilled spirits and alcoholic liquor, against the peace and dignity of the State of Arkansas."
There was a trial, which resulted in a conviction, and appellant filed a motion for a new trial, and also a motion in arrest of judgment, on the ground that the indictment failed to state facts sufficient to constitute a public offense. Both motions were overruled, and an appeal has been duly prosecuted, all of the exceptions saved during the trial being presented in a bill of exceptions.
No brief has been filed on behalf of appellant, but the conviction being a felony, it becomes our duty to consider the whole of the record to discover grounds for reversing the judgment, if any are shown therein.
Without discussing the various assignments of error set forth in the motion for a new trial, it is sufficient to say that none of them calls for a reversal of the judgment.
The principal assignment relates to alleged insufficiency of the evidence. The sheriff of the county testified that he went to appellant's home and there found in his possession several bottles and jars containing whiskey, secreted under the floor, two barrels of fermented mash in a barn, suitable for use in the distillation of alcoholic liquors, a wooden trough in a barn, with a hole in the end, and one or more metal pipes secreted in the bushes near by, and two blocks of wood with a hole through each of them about the size of the pipes. The trough was six or eight feet long and about six inches wide. The blocks of wood had flour dough on them. These circumstances warranted the jury in finding that appellant had in his possession an improvised still temporarily disconnected, but that the same had been set up complete for the distillation of whiskey, and that appellant had been using the same for that purpose. It was sufficient to sustain a conviction for violation of the statute against setting up a distillery for the purpose of using same. McGarity v. State, 151 Ark. 423, 236 S.W. 611.
The question of the sufficiency of the indictment is more serious. If it failed to charge the material elements of a public offense, the defects can be taken advantage of by motion in arrest of judgment. State v. Keith, 37 Ark. 96; Beard v. State, 79 Ark. 293, 95 S.W. 995; McIntire v. State, 151 Ark. 458, 236 S.W. 619.
The indictment was intended to charge a violation of one of the sections of act No. 324 of the Legislature of 1921. Acts of 1921, p. 372. The first section of that statute has no application to this case, for it declares the making or fermentation of mash, wort, or wash fit for distillation or manufacture of wine, beer, or other alcoholic liquors to be an offense. The next three sections read as follows:
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State v. Broadway, CR
...fact that banks deal only in money when giving credit to their depositors, in determining the sufficiency of indictments. Hodgkiss v. State, 156 Ark. 340, 246 S.W. 506; Gurley v. State, 157 Ark. 413, 248 S.W. 902. We looked to common knowledge that non-intoxicating liquors could be brought ......
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Holford v. State
... ... used as a still without additional appliances. Unquestionably ... the vessel, in the condition as found by the officers, was ... not such as to subject the manufacturer to the tax imposed by ... the United States laws on the manufacture of stills ... In ... Hodgkiss v. State, 156 Ark. 340, 246 S.W ... 506, we said: ... "The ... word 'still' is sometimes applied to the whole ... apparatus for evaporation and condensation, but in the ... description of the parts of the apparatus it is applied ... merely to the vessel or retort used ... ...
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Ogburn v. State
... ... We have ... also upheld our statute making it a felony for a person to ... keep an unregistered still, or stillworm in his possession ... regardless of intention as to its use. Earl v ... State, 155 Ark. 286, 244 S.W. 333, and ... Hodgkiss v. State, 156 Ark. 340, 246 S.W ... In ... Ring v. State, 154 Ark. 250, 242 S.W. 561, ... in construing the same statute, we held that, while the act ... of taking or holding possession of the still must be ... voluntary, the possession need not be permanent. It has been ... ...
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Tong v. State
... ... alcoholic liquors did not vitiate the indictment. These words ... might be treated as surplusage in an indictment where the ... charge is, as here, in the second count for the keeping of a ... still without registering the same. Earl v ... State, 155 Ark. 286, 244 S.W. 333; Hodgkiss ... v. State, 156 Ark. 340- 344, 246 S.W. 506 ... 9. The ... contention of appellant Tong that the indictment is void for ... duplicity because it joins the two offenses of possessing a ... still and manufacturing alcoholic liquors in the same ... indictment cannot be ... ...