Shuffield v. State

• Decision Date: 15 December 1919
• Docket Number: 60
• Parties: SHUFFIELD v. STATE
• Court: Arkansas Supreme Court

216 S.W. 695

141 Ark. 276

SHUFFIELD v. STATE

No. 60

Supreme Court of Arkansas

December 15, 1919

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

Judgment affirmed.

H. B Means and T. N. Wilson, for appellant; Chas. Jacobson, of counsel.

1. The sheriff was disqualified, and the coroner should have selected the talesmen, and the verdict is not supported by the evidence, as the liquors found were not spirituous or fermented within our statute. 203 S.W. 838.

2. The court erred in its instructions. 152 U.S. 570; 149 Id. 586; 74 S.E. 500.

John D Arbuckle, Attorney General, and Robert C. Knox, Assistant for appellee.

1. There was no error in overruling the motion to disqualify the sheriff. Kirby's Digest, section 793, as amended by 206, Acts 1917, is not mandatory, and under the law it was a matter for the clerk and not the court, and as the matter was presented to the court instead of the clerk he can not complain. But no prejudice resulted, as it is not shown that his challenges to jurors were exhausted.

2. The evidence is sufficient to support and sustain the verdict. The defendant's confession, coupled with the introduction of the whiskey itself to the jury, together with the testimony of officers that it smelled and tasted like whiskey, was enough.

3. The instructions cover the law of the case fully and fairly.

OPINION

HUMPHREYS, J.

Appellant was indicted, tried and convicted in the Clark Circuit Court for manufacturing spirituous or fermented liquors, and, as a punishment therefor, was adjudged and sentenced to serve one year in the State Penitentiary. From the judgment and sentence an appeal has been duly prosecuted to this court.

Appellant insists that reversible error was committed by the court in overruling his motion to disqualify the sheriff. During the empaneling of the jury, appellant filed a motion, in accordance with section 793 of Kirby's Digest, as amended by Act No. 206, Acts of 1917, to disqualify the sheriff from selecting talesmen from the bystanders, in accordance with an order of the court, and, because of such alleged disqualification, to permit the coroner to select said talesmen. The amended act referred to reads as follows:

"In all cases upon affidavit filed with the clerk of the circuit court, or any other court of record, of the partiality, prejudice, or relationship of the sheriff or deputy sheriff of any county where suit is brought or to be brought, or shall have been commenced, or where such affidavit is filed by the defendant in any criminal prosecution, the clerk shall issue and direct all process to the coroner, who shall execute the same and discharge all duties in such criminal or civil prosecution or suit in the same manner that the sheriff could have done in like cases." This act clearly refers to the issuing of process in vacation, and has no reference whatever to the conduct of a trial in the presence of the court. After the beginning of a trial, the disqualification of the sheriff would be a matter addressed to the discretion of the court. The affidavit charges prejudice, partiality and bias as a ground to disqualify the sheriff. No proof was offered to support this charge. It is true the sheriff became a witness and testified that he watched appellant's premises and finally arrested him at the still, where appellant made certain damaging statements to him and the constable of the township; but this evidence was far from showing any prejudice, partiality or bias on the part of the sheriff toward appellant. Therefore, there was no abuse of discretion by the court in overruling the motion to disqualify the sheriff.

Appellant next contends that the evidence is not legally sufficient to support the verdict. The sheriff discovered a crude still about three hundred yards north of appellant's residence. There were two barrels near it that contained mash, which consisted of corn meal, or chops, and water mixed. There were a box and keg on the ground. After the discovery, he visited the still day and night for several days and found two-thirds of the mash had been used from Friday night to the following...