Larkin v. State

• Decision Date: 10 December 1917
• Docket Number: 33
• Citation: 199 S.W. 382,131 Ark. 445
• Parties: LARKIN v. STATE
• Court: Arkansas Supreme Court

199 S.W. 382

131 Ark. 445

LARKIN v. STATE

No. 33

Supreme Court of Arkansas

December 10, 1917

Appeal from Carroll Circuit Court, Eastern District; J. S. Maples Judge; Affirmed.

Judgment affirmed.

C. A Fuller, for appellant.

1. The verdict is contrary to the law. No one shall be twice put in jeopardy for the same offense. Const., art. 2, § 8. Appellant was acquitted of the charge at a prior term. The record and proceedings were before the court and it takes judicial knowledge of all former proceedings. 16 Cyc. 917. The evidence of Spriggs et al. was not admissible. Other crimes can not be proven. 197 S.W. 684.

2. It was error to instruct the jury verbally. 71 Ark. 367. Also in refusing defendant's instructions requested.

3. Improper remarks of counsel were allowed. 120 Ark. 492; 72 Ark. 138; 7.4 Id. 210; 65 Id. 389.

4. The jury were allowed to separate and mingle with the crowd. Objections were made and incorporated in the motion for new trial which is a part of the record.

John D Arbuckle, Attorney General, and T. W. Campbell, Assistant, for appellee.

1. Former jeopardy was not pleaded and hence abandoned. 103 Ark. 391. The acquittal of selling to Spriggs was no bar to a prosecution for the sale to Hamlin. 57 Ark. L. R. 48.

2. No request was made to reduce the instructions to writing. 80 Ark. 201.

3. The court properly instructed the jury. 127 Ark. 289; 57 Ark. Law Rep. 48.

4. The instructions asked were properly refused. 80 Ark. 495; 84 Id. 119; 81 Id. 25; 84 Id. 16; 127 Id. 289. Courts are not required to duplicate instructions. 103 Ark. 352; 101 Id. 120.

5. The testimony of Spriggs, Gohn and others was admissible. Appellant was present and made the sale.

6. The remarks of the prosecuting attorney or the objections thereto do not appear in the bill of exceptions. It is not sufficient if they only appear in the motion for new trial. 121 Ark. 269; 126 Id. 300.

7. It is not shown that the jury separated or mingled with the crowd. 35 Ark. 118; 26 Id. 323; 13 Id. 317; 32 Id. 309.

OPINION

HART, J.

Charley J. Larkin was indicted for the crime of selling intoxicating liquors without license. He was tried before a jury and convicted, his punishment being fixed at a term of one year in the State penitentiary. From the judgment of conviction he has duly prosecuted an appeal to this court.

Oscar Hamlin testified that during the fall of 1916, that he saw Charles Larkin at the fair held at Berryville, in the Eastern District of Carroll County, Arkansas; that he did not know Larkin at that time but has since become acquainted with him; that in company with Jim Skelton he went into the defendant, Larkin's, place, at Berryville during the fair and bought two drinks and a pint of whiskey from him; that Skelton also bought some liquor from the defendant at the time; that after he got the drinks from the defendant he told him that he would give a dollar for what was left in the bottle; that the defendant said, "You loan me a dollar until I see you again;" that the defendant set the whiskey on the counter and that he went in and got it; that he left the dollar with the defendant. James Skelton in all essential respects corroborated the testimony of Hamlin. He said they first bought drinks of whiskey from the defendant and paid for them; that the drinks were poured out in glasses from a quart bottle; that Hamlin offered the defendant a dollar for all that was left in the bottle. The defendant made the remark, "You loan me a dollar;" that Hamlin laid the money down, went up and took the bottle of whiskey and carried it out and that the defendant took up the dollar which Hamlin had laid down.

Carl Spriggs testified that during the same fair he went into the defendant's place with old man Howell and bought some whiskey from him. He also testified that he told his father-in-law, Elmer Gohn, while driving past the defendant's place of business that he thought they could get some whiskey there; that his father-in-law gave him a dollar and that he went in and threw down the dollar and Larkin gave him a pint of whiskey, three bananas in a sack, and twenty cents in change, which he took back to where his father-in-law was; that this occurred during the fair in the fall of 1916, at Berryville, Arkansas.

Elmer Gohn testified that they drove up in front of Larkin's place of business and that Carl Spriggs said to Larkin, "What have you got to drink?" that Larkin replied nothing but water; that Spriggs then said, "I have plenty of that at home. Have you any whiskey?" That Larkin hesitated a little and then said, "If you want me to, I might get you a drink;" that they drove across the street; that he gave Spriggs a dollar; that Spriggs went back to Larkin's place and came out of it with a pint of whiskey and a little sack with three bananas in it; that they drank the whiskey and it was a poor grade.

Other witnesses for the State also testified that the defendant sold whiskey during the fair at Berryville in the fall of 1916.

The defendant testified for himself, and denied that he had sold whiskey to Hamlin, to Skelton, to Spriggs or to any one else during the fair at Berryville in the fall of 1916, or at any other time.

Joseph Howell was one of the witnesses who testified that he had bought whiskey from the defendant. The defendant testified that Howell came into his place of business with a sore throat and that he gave him a drink of whiskey; that after Howell drank the whiskey he bought a quarter's worth of cigars and paid for them but that he did not charge Howell for the whiskey. He further testified that he and Skelton would sometimes order whiskey together; that they would keep the whiskey in a bottle in his place of business; that when Skelton came in to take a drink out of the bottle, he would buy soda pop from him to drink with the whiskey. He testified that he heard of other persons near his place of business selling whiskey during the fair at Berryville in the fall of 1916, and that he reported them to the officers. Other evidence was introduced by the defendant to corroborate his testimony.

The evidence for the State warranted the verdict of the jury. At the conclusion of the evidence the State was required to elect and elected to stand on the sale made to Oscar Hamlin. The court told the jury that the State elected to try the defendant upon the alleged sale made to Oscar Hamlin and that he must be convicted, if convicted at all, upon this particular sale and not upon any other sale made by him. The court also told the jury that proof of the other alleged sales was admitted to the jury for its consideration in determining whether or not a sale was made to Hamlin and not for any other purpose.

The defendant objected to the testimony of Carl Spriggs and Elmer Gohn and Joseph Howell specifically on the ground that the State had elected to try him at the last term of the court on the sale to Carl Spriggs; that these witnesses had testified on the trial of that case and that their testimony was substantially the same as their testimony in the present case and that the defendant had been acquitted of that charge. The prosecuting attorney admitted this to be true. The court, however, admitted the testimony in question over the objection of the defendant and counsel for the defendant duly saved their exceptions to the ruling of the court. This brings before us, then, the question of whether or not the court erred in admitting the testimony of Carl Spriggs and the other witnesses just referred to.

It is true that in a prosecution under an indictment charging the illegal sale of liquors in general terms, where the State elects to rely on a particular sale for conviction, the general rule of the criminal law, prohibiting the proof of similar crimes, applies. There are, however, certain well known exceptions to the general rule. In Ketchum v. State, 125 Ark. 275, 188 S.W. 825, evidence of other distinct sales was held admissible to illustrate the character of business conducted by the defendant. In that case the defendant claimed that he had not been engaged in the selling of whiskey since the first day of January, 1916, and that he only operated a family grocery store. Proof was made of other sales after the finding of the indictment. The court expressly told the jury that the defendant could not be convicted of any sales made after the finding of the indictment, but that under the circumstances the testimony was admissible to show that the business of selling liquor was carried on by the defendant at the place where the sale was charged to have been made.

Again in Turner v. State, 130 Ark. 48, 196 S.W. 477, the defendant was charged with selling intoxicating liquors. The proof was that he had sold cider containing alcohol in such quantities that the persons who drank it became drunk. In that case the State relied for a conviction upon the sale to a particular person. The court did not admit the sale of cider to other persons in aid of the State's proof that the defendant was guilty of selling to the particular person but the...