Marsh v. State
| Decision Date | 08 November 1920 |
| Docket Number | 235 |
| Parties | MARSH v. STATE |
| Court | Arkansas Supreme Court |
Appeal from White Circuit Court; J. M. Jackson, Judge; affirmed.
Judgment affirmed.
J. N Rachels, for appellant.
The court erred in admitting Sheriff Plant's testimony and in addressing the remarks to the prosecuting attorney in the presence of the jury during the cross-examination of R. M Clayton; also in admitting the evidence of H. B. Rogers. This was extremely prejudicial to appellant. Without this evidence a verdict of "not guilty" would certainly have been the result. There was no competent testimony to support a verdict of guilty, and the court really should have instructed a verdict for defendant in both cases. There was no testimony that Marsh was the man who sold the whiskey to Harve Hall. Marsh was proved to be an honored citizen without blemish or spot, until Castleberry, a lifelong bootlegger, falsely attempted to put the blame on appellant, and a new trial should be granted.
John D. Arbuckle, Attorney General, and Silas W. Rogers, Assistant, for appellee.
There was no error in the admission of evidence, and the instructions were correct. No proper exceptions were saved at the trial to the admission of evidence and the evidence warrants a conviction in both cases.
These appeals are from judgments of conviction of appellant in the White Circuit Court for the illegal sale of whiskey. The cases being against the same party and of the same general character, one opinion will suffice in both cases. The first conviction was obtained in case No. 2463 upon an indictment charging appellant with a sale of whiskey to Riley L. Castleberry, and the second upon an indictment charging him with a sale to Harve Hall. As a punishment in each case, appellant was sentenced to serve one year in the penitentiary. In the first case, or case numbered 2463, attorney for appellant admits that the testimony for and against the sale of four gallons of whiskey by appellant to Riley L. Castleberry, in December, 1919, in Pangburn, White County, Arkansas, presented an issue of fact to be determined by the jury; but contends that the court erred in permitting the sheriff, Tatum C. Plant, to testify in substance that he visited appellant's farm, across the line in Cleburne County, about ten miles from Pangburn, and found a one-gallon demijohn and a two-gallon wooden keg of moonshine whiskey buried in his garden; also a lot of mash in his smokehouse; also, five barrels of mash about one-quarter of a mile outside of his field where a still had been located; also eight or nine half-gallon fruit jars of sugar and molasses in a tow-sack in the barn. This evidence tended to show that appellant was in the whiskey business and was a circumstance tending to establish the sale of whiskey to Riley L. Castleberry. It was therefore proper to admit it for that purpose.
It is insisted that the court erred in addressing the following remark to the prosecuting attorney in the presence of the jury during the cross-examination of R. M. Clayton, one of appellant's witnesses:
The connection in which the remark of the court, and answer of the prosecuting attorney was made is as follows: R. M. Clayton was asked the following question in reference to the molasses and sugar found in the barn:
No objection was made or exception saved at the time to the remark of the court and the answer of the prosecuting attorney. The objection and ruling related to the question propounded by the prosecuting attorney to the witness in reference to the molasses and sugar and was proper and competent.
Two questions are presented for determination on appeal in case No. 2464. The first challenged the admissibility of the evidence of H. B. Rogers, in substance similar to that of Tatum Plant adduced by the State in case No. 2463; and to the evidence of Harve Hall, Ralph M. Jones and Ezra Marsh concerning the purchase of whiskey at a later date by them from appellant near his farm in Cleburne County. The competency of this evidence was discussed in case...
To continue reading
Request your trial