Whitmore v. State
Decision Date | 28 November 1903 |
Citation | 77 S.W. 598,72 Ark. 14 |
Parties | WHITMORE v. STATE |
Court | Arkansas Supreme Court |
Error to Howard Circuit Court WILLIAM C. RODGERS, Special Judge.
Reversed.
STATEMENT BY THE COURT.
Bill Whitmore, the defendant, was indicted for selling intoxicating liquors without license. On the trial there was evidence tending to prove that he sold whiskey without license. On the other hand, there was evidence which tended to show that he did not sell whiskey or intoxicating liquor but that he only made out orders for whiskey to St. Louis parties dealing in whiskey for such of his neighbors as requested him to do so as a favor to them, he having no interest in the sale, and only acting as agent for the party wishing to purchase.
The court gave, among other instructions, the two following, at the request of the prosecuting attorney, to the giving of which the defendant objected and excepted in due time:
For the defendant the court gave at his request the two following instructions:
There was a verdict of guilty, and judgment accordingly, from which the defendant appealed.
Judgment reversed.
Feazel & Bishop, for appellant.
Geo. W. Murphy, Attorney General, for appellee.
OPINIONRIDDICK, J., (after stating the facts.)
In this case the attorney general has confessed that there was error in the instructions given by the court, and, after considering the same, we concur in that opinion, and sustain the confession of error. The second instruction given by the court of his own motion would justify the conviction of the defendant if he did nothing more than purchase whiskey for others at their request and with their money. But there is nothing in our statute that makes it unlawful for one to purchase whiskey for another without license. The license is required of those who sell, not of those who buy, and one may purchase, either for himself or another, all the whiskey in the state, and under our statute he commits no crime by making the purchase.
The presiding judge was no doubt fully conscious of this, and he undertook to cover that phase of the law by his third instruction. But this instruction, though correct in the main part, is in certain respects somewhat too stringent. It correctly states the law that it is lawful for one to buy or order whiskey for another, but it seems to make the lawfulness of the transaction, so far as the agent is concerned, depend upon the good faith of the party ordering the whiskey, whereas, if one pretends to purchase whiskey for another, his guilt or innocence, so far as the crime of making a sale instead of a purchase is concerned, depends upon his own good faith in doing only that which he pretends to do, for the law rarely if ever makes the guilt of one party depend upon the intention or the good faith of another.
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...323, 13 S.W. 388; Carter v. United States, 1 Indian Terr. 342, 37 S.W. 204; Quattlebaum v. State, 119 Ga. 433, 46 S.E. 677; Whitmore v. State, 72 Ark. 14, 77 S.W. 598; v. State, 15 Wyo. 42, 86 P. 17, 544; State v. Campbell, 210 Mo. 202, 109 S.W. 706, 14 Ann. Cas. 403. Objection is also made......
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State v. Reilly
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