Stelle v. State
| Decision Date | 13 January 1906 |
| Citation | 92 S.W. 530,77 Ark. 441 |
| Parties | STELLE v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Pike Circuit Court; JAMES S. STEEL, Judge; affirmed.
Judgment affirmed.
J. C Pinnix, W. P. Feazel and W. C. Rodgers, for appellant.
1. There is no proof that the sale was within one year next before the finding of the indictment. Kirby's Digest § 2106. Proof of the time of commission of the act is essential. 67 Ark. 495, 497.
2. The court erred in peremptorily instructing the jury that the defendant was guilty. 87 Ala. 17. There was no proof that "Peruna" was prepared to be sold for use and to be drunk as a beverage. It is not the intention of the law to prohibit the sale of medicines because they contain a proportion of alcohol. 39 Ark. 450; 50 Ark. 17; 72 Ark. 14. Whether the sale was in violation of the statute was a question of fact for the jury, and not of law for the court. 17 Am. & Eng. Enc. Law (2 Ed.), 204; 70 Mo.App. 554; 59 Ark 341.
Robert L. Rogers, Attorney General, for appellee.
1. The proof was sufficient to warrant the finding that the sale was within one year next before the finding of the indictment. 62 Ark. 497.
2. The proof shows that "Peruna" is intoxicating, and that it was sold for use as a beverage. The offense was complete.
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 Digest, § 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:
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 29, 1903. This was undisputed, and warranted a peremptory instruction so far as that question was concerned. Appellant testified in his own behalf, and detailed the circumstances attending the sale of the liquor to Kelly, but was not asked about the time of the sale, and gave no testimony on that point.
Appellant next contends that he committed no offense, because he sold he liquor as a medicine, and not as a beverage. Or, rather that...
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