Smith v. State

• Decision Date: 30 April 1923
• Docket Number: 343
• Parties: SMITH v. STATE
• Court: Arkansas Supreme Court

250 S.W. 527

158 Ark. 487

SMITH v. STATE

No. 343

Supreme Court of Arkansas

April 30, 1923

Appeal from Little River Circuit Court; B. E. Isbell, Judge affirmed.

STATEMENT OF FACTS.

Appellant was convicted under an indictment charging him with the crime of making a mash fit for distillation as alcohol. He has not favored us with a brief, but we have examined the record in the case, and will discuss such of the questions raised by the motion for a new trial as appear to be of sufficient importance to require discussion.

The sufficiency of the evidence is raised by the motion for a new trial. On that question it may be said that the officers who arrested appellant testified that he voluntarily made certain admissions, which, if true, very strongly indicated his guilt. Appellant denied, at his trial, that he had made these admissions, but the evidence is amply sufficient to sustain the conviction aside from them.

A white man named Moore was engaged in the manufacture of whiskey and his premises were under surveillance, and the sheriff accompanied by two deputies, secreted themselves near Moore's house to watch developments.

Shortly after dark the officers saw appellant, who is a colored man approach Moore's house. He called to Moore, who came out of the house and engaged in a conversation with appellant. Moore and appellant then went into the horse lot, and hitched a horse to a slide, on which they loaded what the sheriff testified was a still. The slide was driven near enough to the sheriff's place of concealment for him to recognize the object as a still. Appellant testified that the object placed on the slide was a barrel of tar which he was hauling to the river to caulk a boat. The river was about a mile from the house, and Moore did have a boat on the river. Appellant explained his action in hauling the barrel after night by saying that he had been hunting that day and forgot to haul the barrel, as he had been directed to do, until after night had fallen. He admitted that he had killed no game. The officers followed appellant through the woods for about a quarter of a mile, and were able to do so by the noise made by the metal vessel on the slide. Appellant admitted he did not go the regular road to the ferry on the river from Moore's house, but testified that he went the short way. The officers lost appellant in the woods, and returned to Moore's house, and, about a half-hour after their return appellant came back, and unhitched the horse and turned it loose. The officers overheard a conversation in which Moore told appellant he would probably be asleep when he returned, but to awaken him. The officers made the arrest before appellant left again, and explained that the arrest was not made earlier because they expected to catch appellant in the act of making whiskey. When first arrested, appellant denied knowing anything about the still or the slide, but later admitted the fact. The officers searched until late in the night, but were unable to find the slide. The sheriff testified that he found where the slide had been driven into the river, but did not find the slide itself.

The officers searched Moore's premises, and they detailed the things found around the house which indicated that whiskey had been recently made there. A still had been in operation only about one hundred yards from the house, and a number of jars and jugs were found which had recently contained whiskey. A copper still was found under some hay about seventy-five yards from Moore's house, and three barrels of mash were found concealed under a woodpile, which the officers testified was about ready "to run."

At the time appellant was arrested he had with him a two-gallon bucket, a lantern, and a gallon demijohn, and a pocket of shotgun shells. The officers also found around the premises bottles and jugs which had contained potassium permanganate and carbolic acid. The officers testified that, after appellant's arrest and during the night, appellant talked about the affair, and that he did so freely and voluntarily, without duress or coercion of any kind; but one of the officers admitted striking the appellant the next morning, but he testified that this was done because appellant refused to leave the pump-house where he then was.

Moore was unmarried, but he kept house, and the officers testified that he showed them, in the presence of appellant, a bed on which appellant occasionally slept in the house. The admission of this testimony is assigned as error.

As a witness Moore admitted the ownership of the mash, but denied appellant had anything to do with its preparation, and he and appellant testified that appellant had been engaged in operating a ferry across the river, and on the night in question had hauled away a barrel of tar. Moore also testified that the tar was bought by Knighton, the owner of the farm on which Moore lived, for the purpose of tarring his fishing nets, of which he had fifteen or twenty. Other facts will be stated in the opinion.

No brief for appellant.

Judgment affirmed.

J. S. Utley, Attorney General, John L. Carter and Wm. T. Hammock, Assistants, for appellee.

Only such assignments of error as were properly excepted to will be noticed. Yazoo & Miss. Val. Ry. v. Solomon, 123 Ark. 66.

No error in giving State's instruction No. 3. He was not charged with "aiding and abetting" but all present were principals. Sec. 2311, Crawford & Moses' Digest. Instruction No. 7 not erroneous. The testimony of the officers relative to the alleged confession of appellant was properly admitted. Meyer v. State, 19 Ark. 156; Young-blood v. State, 35 Ark. 35; Hammons v. State, 73 Ark. 495. Assignments 14-19 are without merit, as the testimony to which they relate was admissible for the purpose for which it was given under the restrictions placed on it by the court. The weight of the testimony and credibility of witnesses was for the jury, and their verdict is supported by the evidence. Rhea v. State, 104 Ark. 174; Denison v. State, 120 Ark. 312; Hughes v. Sebastian County Bank, 129 Ark. 218; Harris v. Bush, 129 Ark. 369.

OPINION

SMITH, J., (after stating the facts).

We think the facts recited are sufficient to sustain appellant's conviction. It is true he was not seen around...