Turner v. State

• Court: Arkansas Supreme Court
• Writing for the Court: HART, J.
• Citation: Turner v. State, 196 S.W. 477, 130 Ark. 48 (Ark. 1917)
• Decision Date: 18 June 1917
• Docket Number: 51
• Parties: TURNER v. STATE

196 S.W. 477

130 Ark. 48

TURNER v. STATE

No. 51

Supreme Court of Arkansas

June 18, 1917

Appeal from Lonoke Circuit Court; Thomas C. Trimble, Judge affirmed.

Judgment affirmed.

Trimble & Williams, J. B. Reed and Geo. M. Chapline, for appellant.

1. The court erred in overruling the plea of former acquittal. It was a question for the jury. Kirby's Digest, §§ 2303-4-5; 23 Am. & Eng. Enc. Law (2 ed.), 571; 34 S.W. 753 43 Ark. 374; 31 Mo. 197.

2. The court erred in giving additional instructions to the jury privately. Kirby's Digest, § 2395; Ferris & Rosskopf Instructions to Juries, § 95; Mason v. State, 127 Ark. 289.

John D Arbuckle, Attorney General, and T. W. Campbell, Assistant, for appellee.

1. The plea of former acquittal was a matter of law for the court and was properly overruled. It must affirmatively appear that the prosecution was for the same offense. 54 Ark. 227; 48 Id. 34; 45 Id. 97; 32 Id. 722. See also, 26 Ark. 260.

2. A juror can not be examined to establish a ground for a new trial, etc. Kirby's Digest, § 2423. The affidavit of the juror was incompetent. 59 Ark. 132; 67 Id. 266; 29 Id. 293.

OPINION

HART, J.

On the 10th day of February, 1917, the grand jury of Lonoke county returned an indictment against Charley Turner for unlawfully and feloniously selling cider containing alcoholic and intoxicating liquors. He was tried before a jury and convicted, his punishment being fixed by the jury at a period of one year in the State penitentiary. The case is here on appeal.

The testimony on the part of the State tended to show that the sheriff of Lonoke county went to the place of business of the defendant in December, 1916, in Lonoke county, Arkansas, and bought from him two quarts of cider, paying therefor the sum of fifty cents. He took these bottles of cider to Little Rock to a chemist to be analyzed. The chemist testified that one of the bottles contained seven and eight-tenths per cent. alcohol and the other six per cent. alcohol; that the average beer contained three per cent. of alcohol and that a beverage containing that amount of alcohol was considered intoxicating. Several other witnesses testified that they had purchased cider from the defendant at his store in Lonoke county, Arkansas, during the latter part of the summer and during the fall of 1916; that they drank the cider and it made them drunk.

On the other hand the defendant denied having sold any cider that contained alcohol and stated that the persons who got drunk had purchased cider from him and mixed with it alcohol they had obtained elsewhere. Other witnesses were introduced by the defendant whose testimony tended to corroborate his statements and to show that he had not been engaged in the sale of cider which contained any appreciable amount of alcohol. The jury were the judges of the credibility of the witnesses and the testimony for the State was legally sufficient to warrant the verdict.

It is next contended by counsel for the defendant that the court erred in overruling his plea of former acquittal. The defendant offered in evidence to sustain his plea of former acquittal the following agreed statement of facts: On the 9th day of February, 1917, the grand jury of Lonoke county returned in open court an indictment against the defendant in which it is charged that in October, 1916, he was guilty of selling one quart of alcohol and intoxicating liquors; that upon this indictment the name of M. A. Marshall appeared as a witness; that on the 10th day of February, 1917, the grand jury returned an indictment against him for selling intoxicating liquors and that M. Phelps and "Preacher Evans" were named as witnesses; that on the 27th day of February, 1917, the defendant was tried under indictment numbered 1750, being the indictment returned on the 9th day of February, 1917, and was acquitted; that the prosecuting attorney elected to prosecute him on the said charge upon a sale made to M. A. Marshall; that the State was permitted to prove the sale of the cider by the defendant to other persons than M. A. Marshall and that the cider sold to them contained alcohol in sufficient quantities to make it intoxicating; that the jury were told under the instructions of the court that it could not convict the defendant of any other offense except the sale to M. A. Marshall and that the testimony of the other sales should be considered simply as a circumstance to show whether or not the cider sold to M. A. Marshall was intoxicating or contained alcohol, and as to whether or not he was selling cider which was intoxicating; that the defendant had objected at that trial to the evidence on the part of the State showing the sale to other parties except M. A. Marshall. The court refused to allow the defendant to introduce his plea of former acquittal in evidence before the jury. The defendant duly saved his exceptions to the ruling of the court.

The court did not err in its ruling in this regard. It is rue the state,...