Sanders v. State

• Decision Date: 26 May 1924
• Docket Number: (No. 3.)
• Citation: 262 S.W. 327
• Parties: SANDERS v. STATE.
• Court: Arkansas Supreme Court

262 S.W. 327

SANDERS v. STATE.

(No. 3.)

Supreme Court of Arkansas.

May 26, 1924.

Rehearing Denied June 16, 1924.

Appeal from Circuit Court, White County; E. D. Robertson, Judge.

T. N. Sanders was convicted of unlawful sale of alcoholic liquors, and he appeals. Affirmed.

John D. De Bois and John E. Miller, both of Searcy, for appellant.

J. S. Utley, Atty. Gen., and John L. Carter, Wm. T. Hammock, Darden Moose and J. S. Abercrombie, Asst. Attys. Gen., for the State.

WOOD, J.

The indictment charged that the appellant "unlawfully and feloniously did sell alcoholic, vinous, malt, spirituous and fermented liquors and compounds and preparations thereof, commonly called tonics, bitters, and medicated liquors." The appellant was tried and convicted on the above charge and sentenced by judgment of the court to imprisonment in the state penitentiary for a period of one year, from which judgment is this appeal.

1. The prosecuting attorney, in his closing argument among other things, said:

"It is not denied that the defendant sold the liquors mentioned in the indictment. He has not denied it; Mr. De Bois did not deny it in his argument; Mr. Miller does not deny it in his argument to you gentlemen; and no one else has denied it. The witnesses have testified that they bought it, and so, the only question for you gentlemen to determine under the law as given you by the court is whether or not the stuff which the defendant did sell was intoxicating or contained alcohol."

The appellant entered a plea of not guilty to the indictment, but did not testify at the trial. He contends that the court erred in overruling his objection to the above argument.

When the remarks of the state's attorney are considered as a whole, they cannot be fairly interpreted to have reference to the failure of the defendant to testify, but only to the fact that the witnesses had testified that the defendant sold the liquors mentioned in the indictment and that they had bought the same and that such fact was undisputed by the testimony. The appellant contends that the case is ruled on this point by the case of Curtis v. State, 89 Ark. 394-401, 117 S. W. 521. In that case Curtis was charged with the crime of carnal abuse. The prosecutrix testified that Curtis had sexual intercourse with her when she was of the age of 15 years and the prosecuting attorney, in his closing argument, stated to the jury that "the defendant does not deny that he had sexual intercourse with the prosecutrix." We held that the argument in that case was prejudicial and reversible error because it necessarily referred to the failure of the defendant to testify. But the remarks here under consideration do not refer to the failure of the defendant to testify. On the contrary, as we have already stated, when they are considered as a whole the prosecuting attorney was emphasizing the fact that so far as the sale of the liquors was concerned there was no dispute in the testimony. When the entire record is considered, it shows that the defense of the appellant in the case at bar was bottomed upon the contention that the liquors sold by him were sold as medicine and not upon the contention that he did not sell the particular character of liquors which the witnesses for the state testified they purchased of him. His contention was solely that such liquors did not come within the inhibition of section 6160, Crawford & Moses' Digest, under which the appellant was indicted. For instance, appellant's prayer for instruction No. 6 is as follows:

"You are instructed that, if you find that the concoctions which the defendant sold to the prosecuting witness were kept and sold by the defendant as medicine or for medicinal purposes, then under the law it is immaterial whether the prosecuting witness used the same as a beverage, and, if the state has failed to prove beyond a reasonable doubt that the defendant sold such concoctions for use as a beverage, then you should acquit the defendant."

The prayer presented by the appellant in this form shows that, while conceding that he sold certain concoctions or liquors as testified by the witnesses for the state, nevertheless he contended that such sale was not a violation of the statute, because he did not sell such liquors as a beverage, but only as a medicine.

It occurs to us, therefore, that the remarks of the prosecuting attorney, to the effect that the sale of the liquors was not denied, had reference not to the failure of the appellant to testify, but to the fact that it was being conceded by appellant and his counsel that the sale was made, but that in making the sale he was not violating the law. But, if we be mistaken in this interpretation of the remarks of the prosecuting attorney, nevertheless they were not prejudicial, because they but reiterated a fact which had been shown by the undisputed testimony for the state and conceded by the appellant's counsel. There was no conflict in the testimony as to the fact of the sale.

The appellant further contends that the court erred in permitting the prosecuting attorney to make the following remarks:

"Mr. Miller, in his argument to you gentlemen, stated that the testimony in this case was not sufficient to justify a conviction. While he was prosecuting attorney of this district, only a little more than a year ago, I have heard him ask for the conviction of persons charged with the same offense as this defendant where the testimony was no stronger or more convincing than it is here, and I have seen juries convict such persons as a result of his efforts, just as you gentlemen should and will do in this case."

In these remarks the prosecuting attorney was merely expressing his opinion of the weight of the testimony in this case compared with what he conceived to be the weight of the testimony in other cases where the appellant's counsel, who was then prosecuting...