Roberts v. State

• Decision Date: 16 December 1907
• Citation: 106 S.W. 952
• Parties: ROBERTS v. STATE.
• Court: Arkansas Supreme Court

106 S.W. 952

ROBERTS v. STATE.

Supreme Court of Arkansas.

December 16, 1907.

Appeal from Circuit Court, Sebastian County; Daniel How, Judge.

P. F. Roberts was convicted of practicing medicine without a license, and he appeals. Reversed and remanded.

The only question to be determined by this appeal is whether the court, in a criminal case, where a part of the penalty is, or may be, imprisonment, can instruct the jury to return a verdict of guilty. The evidence was undisputed, and, if true, showed that appellant had practiced medicine without a license. Appellant was indicted for this offense under section 5241, Kirby's Dig., which fixes the punishment at "a fine of not less than twenty-five dollars nor more than five hundred dollars, or by imprisonment in the county jail for a period of not less than ten days nor more than ninety days; or by both fine and imprisonment." The judge instructed the jury to return a verdict of guilty, which was done, and the punishment assessed at a fine of $100.

P. E. Rowe and T. B. Pryor, for appellant. William F. Kirby, Atty. Gen., and Dan'l Taylor, Asst. Atty. Gen., for the State.

WOOD, J. (after stating the facts as above).

This court in Jones v. State, 15 Ark. 262, held that a defendant who has been tried by a jury and acquitted of an offense punishable by fine only could, upon a reversal and remand of the cause by the Supreme Court, again be put upon trial for the same offense, without violating the constitutional provision "that no person shall for the same offense be twice put in jeopardy of life or limb." Section 8, art. 2, Const. In Taylor v. State, 36 Ark. 84, this court held that, where a defendant was tried by jury and acquitted of a misdemeanor punishable by fine only, the trial court could set aside the verdict of the jury, and again put the defendant on trial, without violating the constitutional provision above mentioned. Thus this court has recognized the power of the circuit court to set aside verdicts of acquittal in misdemeanor cases punishable by fine only. In civil cases this court holds that where the evidence is undisputed and unimpeached, and there is no circumstance shown from which an inference against the facts testified to can be drawn, the facts may be taken as established, and a verdict directed accordingly. Skillern v. Baker, 82 Ark. 86, 100 S. W. 764; American Central Ins. Co. v. Noe, 75 Ark. 406, 88 S. W. 572; Catlett v. Ry. Co., 57 Ark. 461, 21 S. W. 1062, 38 Am. St. Rep. 254. Such direction according to the doctrine of the above cases is not contrary to the provisions of the Constitution, giving the parties in law cases the right to trial by jury (section 7, art. 2, Const.), and prohibiting judges from charging the juries with regard to matters of fact (section 23, art. 7, Const.). For when the conditions exist as announced in Skillern v. Baker, supra, it then becomes a question of law, and the trial court has power to direct a verdict in accordance with the law, which is, but in fact, declaring the law that the jury must obey. A majority of the court is of the opinion that it follows logically from these decisions that, in a misdemeanor case where the punishment is by fine only, the judge having power to set aside a verdict of...