Moore v. State

• Decision Date: 30 January 1922
• Docket Number: 118
• Citation: 236 S.W. 846,151 Ark. 515
• Parties: MOORE v. STATE
• Court: Arkansas Supreme Court

236 S.W. 846

151 Ark. 515

MOORE v. STATE

No. 118

Supreme Court of Arkansas

January 30, 1922

Appeal from Hempstead Circuit Court, George R. Haynie, Judge reversed.

Judgment reversed, and cause remanded.

Steve Carrigan, for appellant.

Instruction No. 3 should have been given in full. It was error for the court to modify it. 34 Ark. 756; 93 Ark. 316; 120 Ark. 494.

The argument of the prosecuting attorney was improper and prejudicial. 141 Ark. 442; 58 Ark. 481; 58 Ark 368; 138 Ark 517.

J S. Utley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.

Even if the argument of the prosecuting attorney was improper, it was not prejudicial. 73 Ark. 453; 74 Ark. 256; 100 Ark. 437; 86 Ark. 600; 93 Ark. 564; 34 Ark. 649; 95 Ark. 321.

OPINION

SMITH, J.

Appellant was convicted of manufacturing intoxicating liquors, and has appealed.

In his concluding argument the prosecuting attorney made the following statement:

"Gentlemen of the jury, I am somewhat tickled and amused at my friend Carrigan, when he argues this case and says that Badge Moore is not guilty of putting up or running or having the still in this case. Carrigan tries to get the jury to think that Jim Thomas was the one who put up the still and had it and run it. This sounds funny to me when I think that the other day when we tried Jim Thomas for having this still, and Carrigan was defending him, that he argued to that jury then that Thomas did not have anything to do with the still, and said that Badge Moore, this defendant, was the closest man to the still, and that if any one knew about the still it was this defendant, Badge Moore. Now, when we are trying Badge Moore, and the shoe is on the other foot, Carrigan now says that Thomas was the man who had the still, and knew about it, and Badge Moore had nothing to do with it. This is a funny argument to me, gentlemen of the jury."

The record shows that "the defendant at the time objected to this argument of the prosecuting attorney, and asked the court to instruct the jury not to consider the same, for the reason that there is no evidence before the jury that Jim Thomas was tried for running this still, that there is no evidence before this jury that Carrigan defended him, that there is no evidence before this jury that Carrigan made an argument in that case that Badge Moore set up, owned and run the still in this case or had anything to do with it.

"And further the defendant asked the court to instruct the jury not to consider the argument of the prosecuting attorney, and to reprimand the prosecuting attorney for making this argument to the jury. The court overruled the defendant's objection to this argument, and refused to instruct the jury not to consider the argument of the prosecuting attorney, and refused to reprimand the prosecuting attorney for making this argument."

The testimony on the part of the prosecution was to the effect that the sheriff, with some deputies, found a still in actual operation on the farm of a white man named Jim Thomas. Appellant was a tenant on this farm, and the still was located about 150 to 300 yards from his house, the testimony of the witnesses varying as to the distance. The sheriff testified that the still could have been seen from appellant's house but for the fact that there was a pine thicket between the still and the house. As the officers approached the still, they saw a white man and two colored men running away from the still. A wagon track was found leading from the still to Thomas' house; and a black ring was found in the wagon bed which had apparently been made while the still was in the wagon. Other circumstances strongly connected Thomas with the operation of the still. A pair of overalls was found at the still, and in one of the pockets a ticket was found showing the sale of a load of cotton seed to the oil mill at Hope, which was made out in the name of Thomas, and, over appellant's objection, the sheriff was permitted to testify that he showed Thomas the overalls, and asked him whose they were, and that Thomas said the overalls belonged to appellant, and explained that the ticket had been made out in his own name, rather than in the name of appellant, because he had told appellant a better price could be obtained for the seed if they were sold as belonging to him, rather than to appellant. This...