Paxton v. State

• Citation: 170 S.W. 80,114 Ark. 393
• Decision Date: 12 October 1914
• Docket Number: 166
• Parties: PAXTON v. STATE
• Court: Supreme Court of Arkansas

170 S.W. 80

114 Ark. 393

PAXTON v. STATE

No. 166

Supreme Court of Arkansas

October 12, 1914

Appeal from Little River Circuit Court; Jefferson T. Cowling, Judge reversed.

STATEMENT BY THE COURT.

Appellant was tried upon the charge of unlawfully selling liquor, and the State offered evidence tending to show that he had made two separate sales, but the proof concerning one of these alleged sales shows only that he procured whiskey for another, and this proof is insufficient to sustain a conviction for making a sale. See Woods v. State, 114 Ark. 391.

The proof concerning the second alleged sale was made by witnesses named McNutt and Nisler, and their evidence was entirely sufficient to sustain the conviction had it been passed upon by a jury. Upon the cross-examination of these witnesses, however, they testified that they were employed by an anti-saloon league to secure evidence against violators of the liquor laws and to appear and testify in these criminal prosecutions. These witnesses were white men and testified that they received $ 5 per day and expenses, and that these expenses included their railroad fare, any whiskey which they might purchase, and their board. They further testified that they were seeking to secure evidence against certain negroes and that in their efforts to secure this evidence they associated with these negroes, ate and slept at their houses and McNutt shot craps with them, and Nisler loaned money to others who played in the game, and both participated in drinking whiskey with the negroes after having purchased it.

The defendant did not testify in his own behalf, nor did he offer any evidence in support of his plea of not guilty, and at the conclusion of the State's evidence the court directed the jury to return a verdict of guilty, which was done, and this appeal has been prosecuted from that judgment.

Judgment reversed and cause remanded.

Steel Lake & Head, for appellant.

1. The testimony of the prosecuting witnesses is such that it can not be said as a matter of law that the jury must have believed it. As to the McNutt sale, the evidence shows that he himself was a bootlegger; that he associated with negroes, ate and slept at their houses, engaged in crap games with them, and that he was working for five dollars a day and expenses in hunting up evidence of liquor violators. The jury were not bound to accept as true the evidence of a man of such character and having such interest in the prosecution. 79 Ark. 247; 89 Ark. 273-6.

2. As to the McElhannon sale, there was no violation of law by Paxton. The evidence shows that the prosecuting witness pointed out to appellant the place where the liquor was sold and that McElhannon gave him the money and sent him there to procure the whiskey for him. 45 Ark. 361; 60 Ark. 312; 68 Ark. 468; 72 Ark. 14; 82 Ark. 405; 90 Ark. 582; Id. 589; 101 Ark. 569; 105 Ark. 462.

Wm. L. Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.

The court's instruction to find appellant guilty was proper. 105 Ark. 462; 162 S.W. 1086; Wilson v. State, ms. op.

SMITH, J. KIRBY, J., dissents.

OPINION

SMITH, J. (after stating the facts).

It is settled that the court may, even in a criminal case where imprisonment is not a part of the punishment, direct a jury to return a verdict of guilty, and the action of trial courts in so doing has been several times approved by this court. But this should be done only when the evidence is reasonable and consistent, and the witnesses stand unimpeached on account of either bias or prejudice and nothing is shown in the evidence which would raise any question as to their veracity, and the evidence offered is of such a nature that it would be arbitrary and capricious for a jury to refuse to believe the witnesses, and the proof is such that reasonable minds could draw only one conclusion from the evidence, that conclusion being the guilt of the party.

In the case of St. Louis Southwestern Ry. Co. v. Trotter, 89 Ark. 273, 116 S.W. 227, an instruction was approved in which a jury was told "that you are not bound to accept as conclusive the statement of the witnesses that the engine was in good order and carefully operated, although there may be no direct evidence to contradict them, but you will consider all the circumstances and evidence bearing upon the condition of the engine and mode of operating it, and the circumstances under which the fire took place, in arriving at your verdict."

It is the province of the judge to pass upon any question involving the competency of the witness and the admissibility of the evidence offered; but it is the province of the jury to pass upon the weight of the evidence and upon the credibility of the witness; and the trial judge may direct a verdict only where the evidence raises no material question of fact for the jury's determination. In other words, where the evidence raises questions which at last are questions of law.

The right to impeach a witness by cross-examination is universally recognized. The leading case in our reports on that subject is the case of Hollingsworth v. State, reported in 53 Ark. 387, where, in an able discussion of this question, Judge HEMINGWAY, speaking for the court, among other things, said:

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