Stelle v. State

• Decision Date: 13 January 1906
• Citation: 92 S.W. 530
• Parties: STELLE v. STATE.
• Court: Arkansas Supreme Court

92 S.W. 530

STELLE v. STATE.

Supreme Court of Arkansas.

January 13, 1906.

Appeal from Circuit Court, Pike County; James S. Steel, Judge.

C. E. Stelle was convicted of selling liquor without a license, and appeals. Affirmed.

J. C. Pinnix, W. P. Feazel, and W. C. Rogers, for appellant. Robert L. Rogers, Atty. Gen., for the State.

McCULLOCH, J.

The appellant was convicted under an indictment charging him with having sold intoxicating liquor without license. The testimony is undisputed and the court instructed the jury to return a verdict of guilty, which was done, the lowest punishment provided by the statute being inflicted.

Appellant sold to one Kelly an intoxicating compound called "Peruna," which was used as a beverage. He contends that the evidence did not warrant the instruction of the court and conviction, because it failed to show that the alleged offense was committed within one year next before the finding of the indictment, or that he sold the liquor to be drunk as a beverage. The statute provides that "no person shall be tried, prosecuted, and punished for any offense less than a felony unless the indictment be found within one year after the commission of the offense" (Kirby's Dig. § 2106) and in all prosecutions for misdemeanors it devolves upon the state to prove the commission of the offense within that time. Dixon v. State, 67 Ark. 495, 55 S. W. 850. The indictment in this case was returned by the grand jury of Pike county on February 18, 1904, and the trial was had on September 20, 1905. The only evidence as to time of sale of the liquor is the testimony of witness Kelly as follows: "Q. Mr. Kelly, have you bought any Peruna from Mr. Stelle at any time within 12 months before the 18th day of February, 1904? If, so, tell the jury how much you bought and what you paid for it. A. Why, I bought a bottle of Peruna from Capt. Stelle and gave him a dollar for it. Q. About when was that? A. I couldn't tell you exactly what time it was. It has been two years ago and over." Two years prior to the date of the trial would carry it back to September, 1903, five months before the finding of the indictment. The answer elicited from the witness by the first question quoted above fixes the time of the commission of the offense on a date within one year before the finding of the indictment. The answer to the next question leaves the precise date in uncertainty, but does not contradict the first answer. It fixes a date more than two years before the trial, but not necessarily more than a year before the indictment was returned. The two answers are not in conflict, and, reading them together, it fixes the commission of the offense some time between February 18 and September 20, 1903. This was undisputed and warranted a peremptory instruction so far as that question was concerned. Appellant testified...