Payne v. State

• Decision Date: 15 May 1916
• Docket Number: (No. 402.)
• Parties: PAYNE v. STATE.
• Court: Arkansas Supreme Court

186 S.W. 612

PAYNE v. STATE.

(No. 402.)

Supreme Court of Arkansas.

May 15, 1916.

Appeal from Circuit Court, Logan County; Jas. Cochran, Judge.

J. C. Payne was convicted of procuring alcohol for another, in violation of Kirby's Dig. § 5135, and he appeals. Reversed and remanded, with directions.

J. H. Evans, of Booneville, for appellant. Wallace Davis, Atty. Gen., and Hamilton Moses, Asst. Atty. Gen., for the State.

WOOD, J.

Appellant was convicted before the mayor of Booneville of the offense of procuring alcohol for another in violation of section 5135 of Kirby's Digest. The city had no ordinance upon the subject, and the appellant was convicted under the above statute. The bill of exceptions shows that:

"It was admitted by the attorney for the city that in the trial of the case below before the trial the defendant moved the court to dismiss the action for want of a bond for costs; * * * that no bond for costs was given, and that the motion of the defendant made in the mayor's court to dismiss the case for lack of a bond for costs was overruled; that the defendant thereupon renewed his motion in the circuit court to dismiss this prosecution for want of a bond for costs."

The court overruled defendant's motion, and the defendant at the time saved his exceptions.

I. The first ground of the motion for a new trial is that the court erred in overruling defendant's motion to dismiss the cause for want of a bond for costs, and this is likewise the first assignment of error urged for reversal of the judgment. The statute provides that:

"In all prosecutions in cases less than felony, in courts of justices of the peace and in other inferior courts, the prosecutor, or some person for him, shall enter into bond, with good and sufficient security, for the payment of all the costs which may accrue in said prosecution." Kirby's Digest, § 2476.

Under this statute if the defendant moves to dismiss the case because no bond for costs has been filed, and makes this motion before the trial, that is, before any affirmative steps have been taken to ascertain whether he is guilty or innocent of the crime charged, he will be entitled to have the case dismissed or the action against him abated unless the prosecutor, or some one for him, shall enter into bond for the payment of costs as the statute prescribes. This is a mandatory provision of the statute, and unless the defendant waives it by pleading not guilty or taking some other affirmative steps in the case before making the motion, then he is entitled to it, and if the motion is thus made in apt time, it is the duty of the court before whom the prosecution is pending to require the bond to be executed. In case of a failure to execute the bond, under such conditions, the court should dismiss the cause. But where the bond is not executed and defendant fails to move to dismiss on that account in limine, or before he takes any other affirmative steps in the case, then he has waived his right under the statute, and he cannot, at any time in the progress of the case, avail himself of it. Such is the effect of our decisions. See Mann v. State, 37 Ark. 405; State v. Parker, 39 Ark. 174; Laur v. State, 94 Ark. 178, 126 S. W. 840; Jones v. State, 111 Ark. 51, 163 S. W. 177. Here the record shows that the defendant, "before the trial moved to dismiss the action for want of a bond for costs." It thus appears that the first affirmative step taken by the defendant in the case was his motion to dismiss. This meets the requirement of the law, as held in Jones v. State, supra, and other cases, that matters in abatement must be raised in limine, or before any other affirmative steps are taken by the defendant in the cause. The court therefore erred in overruling appellant's motion to dismiss, and in not requiring the bond as the statute provides.

II. Appellant was convicted under an act entitled, "An act to aid in the suppression of the illegal sale of intoxicating liquors," which provides:

"It shall be unlawful for any person to either directly or indirectly procure or purchase for another any alcohol, * * * in any district or territory where the same is prohibited by law; Provided, this act shall not prohibit one person from buying for another from a licensed dealer."

Section 2 of the act prescribes the penalty. Act 191, Acts of 1899, Kirby's Digest, § 5135. It was the intention of the Legislature to make criminal that which was not so before the passage of the act; that is, to directly or indirectly procure or purchase for another any alcohol, etc., in any territory where the sale of liquors is prohibited. Where there is any ambiguity in the language of a statute, to ascertain the meaning of the Legislature the court will not only look to the language of the act itself, but may also look to the title of the act. Here the meaning of the Legislature is plain when all the language is considered, and the act is...