Meyer v. State
| Decision Date | 26 February 1951 |
| Docket Number | No. 4648,4648 |
| Citation | 218 Ark. 440,236 S.W.2d 996 |
| Parties | MEYER et al. v. STATE. |
| Court | Arkansas Supreme Court |
Franklin Wilder, Ft. Smith, for appellant.
Ike Murry, Atty. Gen., Jeff Duty, Asst. Atty. Gen., for appellee.
The appellants were charged in 7 separate Informations with the violation of Section 82-902, Ark.Stats. The cases were consolidated and tried together. Specifically, the defendants were charged with: first, possessing for the purpose of sale adulterated bologna; second, manufacturing adulterated bologna; third, possessing for the purpose of sale adulterated hamburger; fourth, manufacturing adulterated hamburger; fifth, possessing for the purpose of sale adulterated wieners; sixth, manufacturing adulterated wieners; seventh, possessing for the purpose of sale adulterated horsemeat. They were convicted of the first six charges and acquitted of the seventh. Sec. 82-902, Ark.Stats., is as follows:
'It shall be unlawful for any person to manufacture, sell, offer for sale or have in possession for the purpose of sale within the State any article of food or drug which is adulterated or misbranded within the meaning of this act * * *'. Secs. 82-902 to 82-910.
The alleged grounds for reversal are as follows: first, the Court's refusal to grant a change of venue; second, the Court's instruction defining, as a matter of law, the meaning of bologna, wieners and hamburger; third, the fact that the defendants were prosecuted in the Circuit Court before they had been granted a hearing before a Health Officer; fourth, the Court's refusal to grant a continuance; fifth, the failure of the prosecution to introduce in evidence the samples of meat products which witnesses for the State had examined, and upon which they based their testimony that it was horsemeat; sixth, that the possession for sale is a necessary ingredient of manufacturing adulterated food in this case and, therefore, a part of the same offense.
The appellants operated the Fort Smith Provision Company. Late in the afternoon of September 15, 1950, Arthur Larimore, Sanitarian for the State of Arkansas assigned to Sebastian County, along with other officers went to the defendants' aforesaid place of business and discovered what one of the officers, who had had experience as a butcher, identified as the carcass of a horse and who testified in detail how the carcass of a cow differed from that of a horse. A local veterinarian was also called in to examine the carcass and he pronounced it as being that of a horse. A sample of this meat was cut from a hind quarter and the officers obtained from a walk-in cooler samples of wieners, bologna and hamburger. These samples were sent to the Federal Security Agency, Washington D. C., for the purpose of proving the kind of meat in the various samples, the samples being numbered so that they could be properly identified.
Otto Meyer denied to the officers that the carcass was that of a horse but stated it was from a big Holstein cow, and that the hide had been left in a pasture where they had butchered, and he gave the officers the location of this pasture. The officers went there but found no cow hide and no evidence of a cow having been butchered, but they did find evidence of the fact that numerous horses had been butchered. The government experts in Washington, D. C., to whom the samples were sent appeared at the trial and testified that all of the samples were composed of horsemeat.
As to appellants' contention that the Circuit Court erred in not granting a change of venue, Initiated Act No. 3, Acts 1937, p. 1384, broadened the Circuit Court's power in this regard as we held in the case of Bailey v. State, 204 Ark. 376, 163 S.W.2d 141, and in the case of Robertson v. State, 212 Ark. 301, 206 S.W.2d 748. Before the trial Court's action in refusing to grant a change of venue will be reversed by this Court, it must appear that there was an abuse of judicial discretion on the part of the trial court, and we cannot say there was such an abuse of discretion in this case. Appellants produced in Circuit Court several witnesses, in addition to evidence of articles and pictures in newspapers, and evidence as to the circulation of the newspapers, but the witnesses knowledge of any feeling in the County against the defendants was very limited, and the articles and pictures in the newspapers were no more than is the custom and practice of newspapers. It was just a plain case of reporting the news and it does not appear that there was a studied effort or plan to build up public feeling and prejudice against the defendants.
Appellants moved for a continuance on the ground that their attorney who was to try the case had only been employed a few days, and that they had not had sufficient time to prepare for trial. Appellants were arrested on the 15th day of September, 1950. The Prosecuting Attorney subscribed and swore to the Informations before the Circuit Clerk on September 21, and bench warrants were issued September 22nd. Defendants, by their attorneys, filed a Motion to Dismiss on September 26th. A Motion for a Bill of Particulars was filed and granted on September 26th, and the Bill of Particulars filed on September 28th, and then it appears that appellants changed attorneys. On October 2nd, the new attorney filed a Motion for a Change of Venue, which was overruled by the Court, and on October 5th he filed the Motion for a Continuance, which was overruled, and the case thereupon proceeded to trial that day.
The appellants had about three weeks to get ready for trial. This Court has held in a long line of decisions that Motions for Continuances are addressed to the sound judicial discretion of the trial court and a reversal can be had only where it is shown by the record that a refusal to grant a continuance was an arbitrary abuse of discretion. Morris v. State, 197 Ark. 778, 126 S.W.2d 93; Smith v. State, 200 Ark. 1152, 143 S.W.2d 190; Collier v. State, 202 Ark. 939, 154 S.W.2d 569. The fact that the lawyer, who actually tried the case had been employed only a few days, although other counsel had been representing the appellants from the first, is not sufficient to call for a reversal of the case. Hamilton v. State, 62 Ark. 543, 36 S.W. 1054; Therman v. State, 205 Ark. 376, 168 S.W.2d 833.
Next, appellants contend that they could not be legally prosecuted in Circuit Court until such time as they were granted a hearing before the Health Officer. We do not so construe Section 82-905....
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