Marsh v. State

• Decision Date: 02 October 1916
• Docket Number: 161
• Citation: 188 S.W. 815,125 Ark. 282
• Parties: MARSH v. STATE
• Court: Arkansas Supreme Court

188 S.W. 815

125 Ark. 282

MARSH v. STATE

No. 161

Supreme Court of Arkansas

October 2, 1916

Appeal from Garland Circuit Court; Scott Wood, Judge; reversed.

Judgment reversed and cause remanded.

C Floyd Huff, for appellant.

1. Defendant was not formally arraigned and did not waive nor enter a plea of guilty.

2. The court erred in admitting the testimony of Holt, Jordon Bryant and Ed. Goff, as to conversations in the absence of defendant. There was no evidence to show a sale of liquor by defendant, or that he was interested in the sale thereof.

3. The court erred in its charge to the jury. There was no evidence upon which to base those given. Those refused correctly declare the law.

Wallace Davis, Attorney General, and Hamilton Moses, Assistant, for appellee.

1. There was no prejudicial error in failure to formally arraign defendant; he waived by announcing ready for trial. 55 Ark 342; 72 Id. 145; 86 Id. 362.

2. There was no error in the admission of testimony. Besides it was not prejudicial. Defendant's objection was not insisted on, nor were exceptions saved.

3. The instructions were correct. The evidence fully sustains the verdict. 109 Ark. 130; Ib. 138.

WOOD, J. KIRBY, J., dissenting.

OPINION

WOOD, J.

Appellant was convicted of the crime of selling liquor in violation of Act 30 of the Acts of 1915. It could serve no useful purpose to set out the testimony upon which the State relies for conviction, nor upon which the appellant relies to establish his innocence. There was evidence to sustain the verdict.

It was contended by the State that appellant was engaged in the unlawful sale of intoxicating liquor at a certain building in the City of Hot Springs; that one Walter Wheatley was the partner of appellant, and that the sales were made by him and others in their employ, and that appellant was interested in these sales. It was shown on behalf of appellant that the firm of T. T. Marsh & Company, a corporation, consisting of himself, his wife and brother, had been in the whiskey business at the place designated for three years prior to the 31st of December, 1915, and that appellant went out of the business on that day and had nothing further to do with it, had no further interest in it; that Walter Wheatley from that time on occupied the premises under lease. Wheatley was appellant's brother-in-law. Wheatley and his son, Bettis, conducted the business at the building designated and a man by the name of Franklin was employed by Wheatley to work there.

Franklin testified that Wheatley and his son went away. Wheatley left him at work there, and he supposed that Wheatley still had charge of it. He was asked what connection, if any, Marsh, appellant, had with the place, whether he assumed any authority or control over the place or gave any orders after Wheatley and his sons left, and while witness was at work there; and he answered: "I went to work there two weeks ago. T. T. Marsh has charge while Mr. Wheatley is away. Mr. Wheatley pays my salary. Mr. Marsh comes over and checks up the cash register and takes the change." That is the reason witness thought Marsh had charge. "He came and got the change and I just supposed you would call it "charge." I don't know what else. He did this two nights that Bettis wasn't there. Bettis took it when he was there."

Appellant testified concerning this as follows:

"When Bettis Wheatley left, he told me to take up the cash until he came back, and give it to his mother, and I took it up twice and took the money out and gave it to her." He further stated that he never at any time since the first of January exercised any authority or ownership, or employed anybody or had anything to do with the place where it was charged that whiskey was sold.

Among other instructions the court gave the following: "If you believe from the evidence beyond a reasonable doubt that Walter Wheatley and Bettis Wheatley or Tom Franklin since the 1st of January, 1916, were engaged in the business of selling any of the liquors mentioned in the indictment in Garland County, or in carrying on said business said liquors were continually sold, and you further believe from the evidence beyond a reasonable doubt that defendant knew such business was being carried on and said liquors were being sold and with such knowledge went to the place...