Seibert v. State

• Citation: 180 S.W. 990,121 Ark. 258
• Decision Date: 06 December 1915
• Docket Number: 33
• Parties: SEIBERT v. STATE
• Court: Supreme Court of Arkansas

180 S.W. 990

121 Ark. 258

SEIBERT v. STATE

No. 33

Supreme Court of Arkansas

December 6, 1915

Appeal from Lafayette Circuit Court; George R. Haynie, Judge affirmed.

Judgment affirmed.

Allen H. Hamiter, for appellant.

1. The verdict is contrary to law. The testimony is conflicting and irreconcilable and there is a variance of proof. 23 Cyc. 253. It is not unlawful to sell liquor containing 1 1/2 per cent alcohol or less. 36 Ark. 258, 69 Ark. 360; 63 S.W. 801; 23 Cyc. 57, 246, 265, 283; 35 Ark. 430. It was not proven that the liquor was "intoxicating." 23 Cyc. 283; 68 Ark 468; 69 Id. 360; 63 S.W. 801.

2. It was error to allow the prosecuting attorney to ask if he had not been convicted before and if he did not have U. S. license. 67 Ark. 112.

3. The indictment is bad.

Wallace Davis, Attorney General and John P. Streepey, Assistant, for appellee.

1. There is no variance. He was charged with selling ardent, vinous, etc., and intoxicating liquor. The proof shows that he sold wine and that it was intoxicating.

2. There is no error in the instructions. 76 Ark. 562; 77 Id. 441.

3. The questions asked by the prosecuting attorney were not improper, nor prejudicial.

OPINION

SMITH, J.

Appellant was convicted under an indictment which charged that he "did unlawfully sell and give away and was unlawfully interested in the sale and giving away of ardent, vinous, malt, fermented, spirituous, alcoholic and intoxicating liquors, without first procuring a license from the county court of said county of Lafayette authorizing him so to do."

The State relied for a conviction upon the evidence of one G. P. Baker who testified that he drank two glasses of the liquor sold by appellant; that it was a grape wine; and that the two glasses of it which he drank went immediately to his head, and that he could not have gotten home had he drunk two more glasses.

It is insisted that there is a variance between the proof and the allegations of the indictment. But such is not the case. The indictment alleges the liquor sold was an intoxicating drink, and if this was true it would make no difference what its name was.

Appellant complains because the prosecuting attorney was permitted to ask him on his cross-examination if he had not been convicted before for selling whiskey, and if he did not have United States revenue license. He denied having United States revenue license, but admitted that he had plead guilty upon five charges of selling liquor illegally at the previous term of court, and within the last twelve months had also plead guilty in the Mayor's court upon the same charge.

This was a proper subject for cross-examination, especially in view of the fact that appellant denied that the beverage sold by him was intoxicating. No attempt was made other than by the cross-examination of appellant to show that he had a revenue license, and as he denied having such license no prejudice could have arisen from the question. However, it would have been proper to show that appellant had such license if such had been the fact.

Over appellant's objection the court instructed the jury as follows:

"If you believe from the testimony in this case, gentlemen beyond a reasonable doubt that this defendant sold any of the liquors mentioned in this indictment the court has just read, and that such liquors were intoxicating, or that any of such liquors contained any alcohol, although it was not intoxicating, you will find the...