State v. Blanut

• Decision Date: 04 December 1886
• Citation: 2 S.W. 190,48 Ark. 34
• Parties: STATE v. BLAHUT
• Court: Arkansas Supreme Court

2 S.W. 190

48 Ark. 34

STATE v. BLAHUT

Supreme Court of Arkansas

December 4, 1886

APPEAL from Garland Circuit Court, Hon. J. B. WOOD, Circuit Judge.

Judgment reversed and cause remanded.

Dan W Jones, Attorney-General, for appellant.

On the 10th day of April, 1886, two bills were returned against the appellee: No. 404, charging him with selling liquor to Nick Gray, a minor, on the 15th of January, 1886; No. 377 charged him with selling to the same party on the 15th of February 1886, and to this charge he pleaded guilty, and when No. 404 was subsequently called for trial he interposed a plea of former conviction, relying upon the plea of guilty in 377. The state proved sales by him to the said minor on other and different days than the 15th of February (the date charged in 377), both prior and subsequent to that day and within a year from the finding of the indictment. The court sustained the plea of appellee. Transcript, pp. 7 and 8.

The court erred, for the appellee was guilty of an infraction of sec. 1878, Mansfield's Digest, at each sale made to the minor. It was not sought to punish him twice for selling on the 15th of February (for he had expiated that offense), but the sales on other days.

OPINION

COCKRILL, C. J.

Two indictments were returned against the appellee for selling whisky to a minor. The first charged him with selling to a minor on the 15th day of January; the second, with selling to the same minor on the 15th day of February, of the same year. He entered a plea of guilty to the second indictment, and when the other case was called for trial, he interposed a plea of former conviction, relying upon the judgment upon the plea of guilty in the first case as a bar. On the trial of the issue under this plea before the court, a jury being waived, the state proved that the defendant had made sales of liquor to the minor prior to the 15th day of February, the date of the sale charged in the second indictment, and within one year of the finding of the first indictment, and also other sales subsequent to the time laid in the second indictment. The court found in favor of the defendant, sustained his plea of former conviction and discharged him. The state appealed.

The finding is not sustained by the proof. Each sale of liquor by the defendant to the minor was a separate offense, and there could be as many convictions as there were sales made. (Emerson v. State, 43 Ark. 372.) It is true...