Shoop v. State
| Decision Date | 28 January 1946 |
| Docket Number | No. 4397.,4397. |
| Parties | SHOOP v. STATE. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Crawford County; J. O. Kincannon, Judge.
Noah Shoop was convicted in the circuit court on appeal from the municipal court for selling intoxicating liquor in a dry county, and he appeals.
Affirmed as modified.
Howell & Howell, of Van Buren, for appellant.
Guy E. Williams, Atty. Gen., and Oscar E. Ellis, Asst. Atty. Gen., for appellee.
Noah Shoop has appealed from judgments in four cases wherein he was found guilty of selling intoxicating liquors in a county in which the sale of such liquors was prohibited under the provisions of Initiated Act No. 1, adopted November 3, 1942, Acts 1943, p. 998. He was fined $500 for each offense. The trial court ordered that the defendant be confined in the Crawford County jail until the obligations were discharged. Two days later, and at the same term, a new judgment was entered, directing that Shoop "* * * be confined in the state penitentiary at hard labor until such time as the fine (s) and cost (s) be paid at the rate of $2.00 per day".
Reversal is sought, first, on the ground that evidence was insufficient. The record discloses testimony by James F. Dubberly, Sr., that he had repeatedly purchased liquor from Shoop; and, while he was not specific as to all dates, he did state positively that at least four separate purchases had been made from the defendant since the county by referendum banned the sale of intoxicants. Dubberly's credibility was for the jury and its finding that the sales were made will not be disturbed. Argument by appellant's counsel that there was no proof the sales, if in fact they were made, were consummated in "dry" territory is answered by our familiar holding that trial courts may take judicial notice of local laws where the circumstances are such that knowledge will be presumed. Skiles v. State, 150 Ark. 300, 234 S.W. 721; Crumbley v. Guthrie, 207 Ark. 875, 183 S.W.2d 47.
The second contention is that the Municipal Court for the City of Van Buren, where information was originally filed by the prosecuting attorney, was without jurisdiction because of limitations imposed by Art. 7, Sec. 43, of the Constitution. It is there provided that corporation (or municipal) courts for towns and cities may be invested with jurisdiction concurrent with justices of the peace in civil and criminal matters, "and the General Assembly may invest such of them as it may deem expedient with jurisdiction of any criminal offenses not punishable by death or imprisonment in the penitentiary, with or without indictment, as may be provided by law * * *."
Although on appeal to circuit court the charges against Shoop were consolidated, the jury was instructed that he was being tried for four separate offenses and that each one was a "first offense." Section 3 of Initiated Act No. 1 of 1942, effective January 1, 1943, contains the provision that
Appellant's argument is that, although the offense with which he was charged is denominated in the statute as a misdemeanor, the part of the statute that authorizes confinement in the penitentiary on default of payment of fine controls and makes the offense a felony, and that, if the offenses was a felony then, since the prosecution was begun in the municipal court, which, under the constitution, is invested with jurisdiction to try only misdemeanor cases, the circuit court on appeal would likewise be without jurisdiction.
On behalf of the state it is urged that the offense charged was only a misdemeanor and the fact that the law provided for confinement in the penitentiary until the fine was discharged at the rate of $2 per day did not change the grade of the offense from that of misdemeanor to that of felony.
This Act declares that violation thereof (except in case of a third conviction) shall constitute a misdemeanor, punishable by a specified fine; but in the last sentence it is provided that, upon failure of the accused to pay the fine, he shall be confined in the penitentiary until the fine shall have been discharged at the rate of $2 per day.
By Sections 2922 and 2923, Pope's Digest, it is provided that offenses punishable by imprisonment in the penitentiary are felonies and that other offenses (which are those punishable by fine and/or jail sentences) are misdemeanors.
While there is authority for holding that the imprisonment authorized in event of nonpayment of a fine is not a part of the punishment, but rather a means of enforcing collection of the fine, we conclude that whenever the ultimate effect of conviction of an offense may, in any case, be incarceration in the penitentiary such offense must be deemed to be a felony. "The maximum penalty that may be imposed or the things authorized to be done are the controlling characteristics in determining whether an offense is a felony or a misdemeanor." 22 C.J.S., Criminal Law, § 6, p. 57.
Viewing the Act in the light of this conclusion, there is an irreconcilable conflict in its provisions, because, in the first sentence of the paragraph dealing with punishment of violations, it is stated that first and second violations shall be misdemeanors, and in the final sentence of this paragraph it is provided that, if these violators (convicted of what has been declared to be a misdemeanor) do not pay their fines, they are to be confined at hard labor in the penitentiary —a punishment reserved under the law for those found guilty of felonies.
In his work "On the Interpretation of Statutes" Sir Peter Benson Maxwell said: Chapt. IX, sec. 1, p. 198.
"It may be that two provisions are irreconcilable; if so, the one which expresses the intent of the law-makers should control." Sec. 166, p. 263, Crawford, "Statutory Construction".
While under the charge laid against appellant he was accused only of a misdemeanor, yet, under a literal construction of the Act, if appellant is unable to pay the fines against him, aggregating $2,000, he must be confined in the penitentiary at hard labor for 1000 days. There is no provision in the law for any distinction between prisoners received at the penitentiary—they are all presumably felons, and are treated as such by those in charge of the prison. Now by some refined process of reasoning it might be established that appellant, should he be put in the penitentiary for nonpayment of his fine, would not be a felon, and that there is a difference between one committed to the institution on conviction of felony and one sent there to discharge a fine by hard labor, it is doubtful if this distinction would be comprehended by the public generally, and certainly it would be difficult for a misdemeanant undergoing penal servitude along with felons to appreciate this differentiation, however logical it might be in theory.
Treating the offense as a misdemeanor, as it is denominated by the Act, justices of the peace have jurisdiction of trials therefor. So, if the Act should be literally construed and enforced, a justice of the peace, on nonpayment of fine assessed by him for violation of the Act, would be authorized to issue his mittimus committing the offender to the penitentiary —and this in the face of the constitutional provision limiting jurisdiction of the justices of the peace (except in examining proceedings) to misdemeanor cases. We cannot conceive that it was the intention of the framers of our constitutional or statutory law that a justice of the peace should, in any circumstances, have the power to commit offenders to the state penitentiary.
In interpreting a statute the guiding principle must always be the ascertainment of the intention of the law-makers. The framers of this law declared that violation thereof should be a misdemeanor, and we conclude that this explicit declaration should control and nullify the last clause under which punishment reserved for felons might be imposed on persons already defined to be misdemeanants.
Next contention of appellant is that by the provisions of Sec. 9903 of Pope's Digest the circuit court could not put appellant on trial until ten days after the date of the filing of the transcript of the municipal court. The statute does not...
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