Whitmore v. State

• Decision Date: 28 November 1903
• Citation: 77 S.W. 598,72 Ark. 14
• Parties: WHITMORE v. STATE
• Court: Arkansas Supreme Court

77 S.W. 598

72 Ark. 14

WHITMORE v. STATE

Supreme Court of Arkansas

November 28, 1903

Error to Howard Circuit CourtWILLIAM 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:

"No 2.The court instructs the jury in this case that, if they believe from the evidence, beyond a reasonable doubt, that the defendant in Howard county, Ark., within twelve months before the filing of this indictment, procured the sale or ardent, vinous, malt, fermented or intoxicating liquors for others by taking orders therefor, and that he took orders for different parties together or severally, and then purchased the liquors for them with money given by them for this purpose to the defendant, and distributed it among them according to their orders, he(the defendant) would then be guilty of an unlawful sale of liquors to said parties, and you should convict the defendant.

"No 3.A party has a right to order whiskey through an agent, and the agent could do anything in the way of getting the liquor that the person employing him could; and where one employs another to order whiskey for him, and pays the price and all the expenses incident to the purchase and delivery of the whiskey before the order and delivery are made, it is lawful provided the transaction is made in good faith on the part of the party ordering."

For the defendantthe court gave at his request the two following instructions:

"No 4.The court tells the jury that they have no right to disregard the testimony of the defendant on the ground alone that he is the defendant, and stands charged with the commission of the crime.The law presumes the defendant to be innocent until he is proved guilty, and the law allows him to testify in his own behalf, and the jury should fairly and impartially consider his testimony, together with all the other evidence in the case, taking into consideration the interest he may have in the result of your verdict.

"No. 5.The court instructs the jury that you cannot convict the defendant for ordering whiskey from one authorized by law to sell liquor unless you further find from the evidence that the defendant solicited and got others to make orders through him, either directly or indirectly."

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.

OPINION

RIDDICK, J., (after stating the facts.)

In this casethe 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 statutehe 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.

There is another respect in which this instruction...