Smith v. State

• Decision Date: 11 April 1891
• Citation: 16 S.W. 2,87 Ark. 459
• Parties: SMITH v. STATE
• Court: Arkansas Supreme Court

16 S.W. 2

87 Ark. 459

SMITH v. STATE

Supreme Court of Arkansas

April 11, 1891

Appeal from Lee Circuit Court; M. T. Sanders, Judge; reversed.

Smith was indicted for selling liquor in Lee County without license. Waiving a jury, he was tried by the court and convicted, and has appealed.

The evidence showed that defendant took orders for whisky from witnesses Roane and Wamble in Lee County, and that he delivered the whisky to the witness in each instance upon their paying him $ 3 for the whisky and 30 cents express charges.

According to the bill of exceptions signed by the trial judge, Roane testified as follows: "I requested the defendant to order a gallon of whisky for me, which he agreed to do. He was agent, or said he was agent, for a whisky house in Helena. I was sick, and not able to go to Marianna, and asked defendant to bring the whisky out to me. He said I would have to give him an order for it, and I told him to write an order for it and sign my name to it." Also Wamble testified "I gave the defendant an order for a jug of whisky. He stated that he was agent for a whisky house in Helena Phillips County. He agreed to order the jug of whisky for me. I asked him to bring it out from Marianna. He told me to give him an order for it, and I authorized him to bring it out to me. * * * I have the tag which was on the jug." [Witness here exhibited the tag which he stated came off the jug containing the following words: "To W. H. Wamble Marianna, Ark. From A. Goitein, Helena, Ark."]

In addition to the foregoing testimony, a bill of exceptions. prepared by defendant and tendered to the judge showed that witnesses Roane and Wamble swore that the orders which they authorized defendant to write and sign their names to were addressed to the express agent at Marianna, directing him to deliver the whisky to the defendant. The judge struck out this. statement. Defendant then filed affidavits of James P. Brown, of W. T. Derrick, clerk of the court, and of F. H. Govan, his deputy, to the effect that the witnesses Roane and Wamble swore that they authorized defendant to write orders to the express agent at Marianna and sign their names thereto, directing him to deliver the whisky to defendant.

McCulloch & McCulloch, for appellant.

Appellant was the agent of a licensed dealer in Helena--he merely solicited orders which were filled by his principal by delivering the goods to the express company at Helena to be transported to the purchasers. This constituted a sale at Helena, and not in the prohibited district. 43 Ark. 353; 44 id. 230; 50 Id. 20; 51 Id. 133.

W. E. Atkinson, Attorney General, for appellee.

There was no evidence that appellant's principal was a licensed liquor dealer. Wharton, Cr. Law. (8 Ed.) § 331; 38 Ark. 518; 51 Id. 552. The facts in this case bring it within the rule in Berger v. State, 50 Ark. 20.

OPINION

COCKRILL, C. J.

The bill of exceptions, as allowed by the circuit judge, leaves it in doubt whether the whisky which the...