Kinnane v. State

• Court: Arkansas Supreme Court
• Writing for the Court: McCulloch
• Citation: Kinnane v. State, 153 S.W. 583 (Ark. 1913)
• Decision Date: 27 January 1913
• Parties: KINNANE v. STATE.

Page 583

153 S.W. 583

KINNANE v. STATE.

Supreme Court of Arkansas.

January 27, 1913.

Appeal from Circuit Court, Mississippi County; W. J. Driver, Judge.

Ambrose Kinnane was convicted of operating a blind tiger, and he appeals. Affirmed.

The special findings of fact mentioned in the opinion were as follows: "The court finds in this cause that the defendant, within 12 months before the return of the indictment in this case, was in charge and user of a certain room on the Steamer Harry Lee, in which said room intoxicating liquors were kept for sale; that said steamer landed on the Arkansas shore in the Osceola district of Mississippi county, and received witness as a passenger for the purpose of selling liquor to witness; that witness was carried to a point east of the boundary line of Arkansas in said river, where the sale was made, and witness was then returned and discharged at said landing in Arkansas; that said intoxicating liquors were kept for sale in the Osceola district of Mississippi county, Ark., in violation of section 5140, Kirby's Digest, and therefore adjudge defendant guilty and assesses his fine at $500 and 30 days' imprisonment."

E. L. Westbrooke, of Jonesboro, for appellant. Hal L. Norwood, Atty. Gen., and Wm. H. Rector, Asst. Atty. Gen., for the State.

McCULLOCH, C. J.

Appellant was indicted by the grand jury of Mississippi county for the offense of operating a blind tiger; and on a trial before the court sitting as a jury he was convicted, and a fine and imprisonment were imposed.

The judgment of the court is in usual form, reciting the appearance of the parties, by attorneys, the submission of the cause to the court upon an agreed statement of facts, and a finding by the court of the guilt of the defendant as charged in the indictment. Then follows the judgment imposing the punishment. The judgment entry does not recite the facts stated in the agreement, nor the special findings of facts made by the court. There is, however, in the transcript what purports to be a written statement of facts by the parties; also what purports to be appellant's request to the court for a declaration of the law, and the court's finding of facts. There is no bill of exceptions in the transcript, and no motion for new trial was filed.

Counsel for appellant insist that the facts, as set forth in the agreed statement, are not sufficient to sustain the judgment; but the agreed statement of facts is not brought into the record, so that we can pass upon that question. Counsel invoke the rule, announced by this court in many decisions, that "neither a motion for new trial nor a bill of exceptions is necessary, where the errors complained of do not grow out of the evidence or instructions, but appear from the record itself." Phillips v. State, 100 Ark. 515, 140 S. W. 734. That rule is not, however, applicable to the transcript now before us, because...