Tong v. State
| Decision Date | 02 November 1925 |
| Docket Number | 199 |
| Citation | 276 S.W. 1004,169 Ark. 708 |
| Parties | TONG v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Prairie Circuit Court, Northern District; George W Clark, Judge; affirmed.
Judgments affirmed.
Gregory & Holtzendorff and Emmet Vaughan, for appellant.
H W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
The indictment against the appellants, Tong and Donaho, contained two counts. The first count charged that the appellants "unlawfully and feloniously did manufacture and were interested in the manufacture of one pint of alcoholic liquor," and the second count charged that the appellants "unlawfully and feloniously did set up, own and operate a still, which was used and intended to be used in the manufacture and distilling of alcoholic liquors without first having the same registered with the proper United States officers." Each count charged that the respective offenses were committed in Prairie County, Arkansas, on the 20th day of February, 1925. There was a demurrer to the indictment, which was overruled. The appellants were placed on trial first on the charge contained in the first count of the indictment and were convicted on this count, and their punishment fixed at one year in the State penitentiary. They were put on trial for the offense charged in the second count, and on motion of the district attorney, before the evidence was concluded, the charge was dismissed as to appellant Donaho, who has also dismissed his appeal here. Appellant Tong was convicted on the second count, and his punishment fixed at one year's imprisonment in the State penitentiary. From these judgments they prosecute this appeal, and the cases may be disposed of here in one opinion.
We will dispose of the grounds urged for reversal in the order presented in the brief of appellants' counsel.
1. Counsel for appellants urge that the defendants were not tried by a fair and impartial jury; that certain jurors on their voir dire expressed a prejudice against the offense of which the appellants were convicted, and one of them expressed a prejudice against one of the appellant's attorneys, all of which proved that the jurors were not qualified to sit in the case. While the examination of the jurors on their voir dire disclosed that they were strongly prejudiced against those violating the law concerning the manufacture, sale, or giving away, etc. , of intoxicating liquors, yet they each answered that they could and would, if selected on the jury, try the charge against the appellant according to the law and evidence; that they would not allow any prejudice they had against the violation of the liquor law to influence them in making their verdict; that they knew nothing of the facts of the particular case and had no personal prejudice against the appellant, and would not render a verdict against him unless the evidence proved him guilty. One of the jurors stated that he would not allow any feeling that he had against one of the appellant's attorneys to influence him in rendering his verdict.
Such was the effect of the examination of the jurors on their voir dire, and it brings the case squarely within the doctrine announced in Eddy v. State, 165 Ark. 289, 264 S.W. 832. The juror in that case on his voir dire stated that he could go into the jury box and try the defendant according to the law and the evidence just as he could try him for any other crime, although he had said that he had a prejudice against the crime of selling whiskey. In that case we held the juror was not disqualified; and in the case of Corley v. State, 162 Ark. 178, 257 S.W. 750, we held that a juror's antipathy to the particular crime charged against the defendant is not a disqualification, where he stated he would not convict one so charged unless he was shown to be guilty by the testimony.
2. The next contention is that the court erred in admitting the testimony of Bingham as to what appellant Tong told him about making other whiskey. Bingham testified that he was the city marshal of DeValls Bluff and went with the sheriff to make the raid on appellant's premises. He was permitted, over the objection of appellant, to state that appellant said that most of the liquor they had sent out before went to Little Rock. Appellant received $ 2.00 a quart for it, and he would not sell less than five gallons to one man. This testimony tended to prove the kind of business appellant was engaged in. 10 R. C. L. p. 925. As is said in Brown v. State, 161 Ark. 253 at 253-255, 255 S.W. 878, "it tended to throw light upon the issue and was therefore admissible in evidence." See cases there cited.
3. Counsel contend that the court erred in permitting the witness Frank Tong to testify that the appellant Tong took care of a crap shooter who had been shot, and also in permitting the witness to answer questions as to some stolen cattle found in his possession. The witness Frank Tong testified on direct examination that he was the appellant's brother, and that he never knew of appellant engaging in the illicit manufacture of whiskey; that appellant was a farmer. On cross-examination witness was asked who the two boys were who were shot with reference to a negro crap game or something like that over on witness' place, and if these parties didn't live on the same place where witness lived, and if they didn't get shot in an attempted hold-up, and if they didn't come back to the witness' place after they were shot, and whether or not witness' folks took care of them. The witness, over the objection of appellant, was likewise asked to tell the jury whether or not stolen cattle over there that belonged to a negro in Monroe County were not found in his possession, and whether or not the negro came and got them. When these questions were objected to, the district attorney announced that his purpose was to show the associations of the witness and for the purpose of testing his credibility, and the court, in permitting the questions to be propounded, announced that the examination would be permitted for that purpose. The testimony was competent as bearing on the credibility of the witness. Hollingsworth v. State, 53 Ark. 387- 390, 14 S.W. 41; Rhea v. State, 104 Ark. 162 at 162-181, 147 S.W. 463; Smith v. State, 162 Ark. 458-61, 258 S.W. 349; Turner v. State, 155 Ark. 443, 244 S.W. 727. The testimony in regard to the possession of the stolen cattle by the witness was competent for the same purpose as testing the credibility of the witness, and the court in admitting it limited it to that purpose. See Turner v. State, supra, 448.
4. Counsel next contend that it is not a crime in this State to manufacture alcoholic liquors unless they are manufactured for beverage purposes. This contention is in the teeth of the statute and of our decisions. See § 6160, C. & M. Digest; Shuffield v. State, 141 Ark. 276 at 276-280, 216 S.W. 695; Sanders v. State, 164 Ark. 491, 262 S.W. 327. The statute, in broad terms, makes it unlawful for any person to manufacture any alcoholic liquors within the State of Arkansas. There was, therefore, no error in overruling the demurrer to the indictment.
5. It is urged that the court erred in instructing the jury, when they returned for further instructions, that, if they convicted one of the defendants, they should convict both. The bill of exceptions does not show that the jury returned for further instructions, and that the court instructed them as set forth in this assignment of error. The 16th ground of appellant's motion for a new trial does assign the above as one of the errors of the trial court, but, as we have before stated, the motion for a new trial itself is not sufficient to show the alleged error. Such an occurrence, if it took place, and the ruling of the trial court thereon should have been set forth in the bill of exceptions.
6. Counsel insist that the court erred in instructing the jury as follows: ...
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