Melton v. State

• Decision Date: 29 September 1924
• Docket Number: 138
• Parties: MELTON v. STATE
• Court: Arkansas Supreme Court

264 S.W. 965

165 Ark. 448

MELTON v. STATE

No. 138

Supreme Court of Arkansas

September 29, 1924

Appeal from Greene Circuit Court, Second Division; G. E. Keck Judge; affirmed.

Judgment affirmed.

Jeff Bratton, for appellant.

J S. Utley, Attorney General, and John L. Carter, Assistant, for appellee.

OPINION

WOOD J.

This is an appeal from a judgment sentencing the appellant to imprisonment in the State Penitentiary for a period of one year for the crime of selling liquor. Mrs. Ollie Waters, a witness for the State, testified that, in the spring of 1922, she saw the appellant sell liquor to one Dink McCullough. The sale was in the presence of appellant's wife and daughter. She stated that it was white mule whiskey. The sale took place at appellant's meat-house, and appellant got the whiskey out of a jar which he kept in the meat-house. Witness saw McCullough pay the appellant for the whiskey. She thought it was whiskey because she smelled it.

Over the objection of the appellant, Mrs. Waters testified that, close to the same time and at the same place, she saw Mrs. Melton, appellant's wife, sell some liquor to one Dalton Hardy. On cross- examination the witness stated that the meat-house was the place where Dink McCullough delivered the bills to appellant and received whatever he did receive from the appellant. Whether it was whiskey or not witness did not know. She had smelled it there before when she was at appellant's house.

Over the objection of appellant, deputy sheriffs testified that they got a search warrant to search appellant's wagon, and made a search of the same, in the summer of 1923, and found a gallon of whiskey in a glass jug. Appellant was on his way from home to town. Witness Joe Waters testified for the State, over the objection of appellant, that he bought liquor from Edward Melton, son of appellant, at the same place where appellant was accused of selling liquor to Dink McCullough. This sale was in the summer of 1922.

Dink McCullough and Dalton Hardy, witnesses for the defendant, testified and denied that they bought liquor, as testified to by Mrs. Waters, a witness for the State. Mrs. Melton and Jewell Melton, wife and daughter of appellant, testified denying the sale as testified to by witnesses for the State. The appellant also testified that he did not sell any whiskey.

Over the objection of appellant, the court, among others, gave the following instruction:

"No. 3. There is certain evidence that has been offered with reference to an alleged sale of liquor by the defendant's wife and also by his son. You are instructed again that this testimony should not be and will not be considered by you for any purpose, unless you find that the alleged sales made by the wife and son, if made, were made at the residence of the defendant and with his knowledge and consent, and, unless you so find, you will not consider that testimony for any purpose, and if you find that it was made with his knowledge and consent by them, then you will consider it only for the purpose of shedding light, if you find that it does shed light, upon the kind and character of business that the defendant might have been engaged in, and not as evidence against him in this case of the sale which he is charged with here."

1. The appellant contends that the judgment should be reversed because the jury, in crediting the testimony of Mrs. Waters, arbitrarily disregarded the testimony of the appellant and his witnesses, four in number, all of whom flatly contradicted the testimony of Mrs. Waters. The credibility of witnesses and the weight to be given their testimony was entirely within the province of the jury. The testimony of the witness for the State did not have to be corroborated, and it was for the jury to determine whether the same was overcome by the testimony of the witnesses for the appellant. Meeks v. State, 161 Ark. 489, 256 S.W. 863. The testimony of Mrs. Waters to the effect that she saw the appellant sell whiskey was sufficient to sustain the verdict.

2. The appellant next contends that the court erred in allowing the testimony of Mrs. Waters, to the effect that she saw the wife of appellant, at the same place and close to that time, sell liquor to Dalton Hardy, and also erred in allowing Joe Waters to testify that, in the summer of 1922, he bought liquor from the son of appellant at appellant's home. The testimony tending to prove the sale of liquor made by appellant...