Williams v. State, s. 4934

• Decision Date: 11 May 1959
• Docket Number: 4935,Nos. 4934,s. 4934
• Citation: 230 Ark. 574,323 S.W.2d 922
• Parties: William R. WILLIAMS, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 922

323 S.W.2d 922

230 Ark. 574

William R. WILLIAMS, Appellant, v. STATE of Arkansas, Appellee.

Nos. 4934, 4935.

Supreme Court of Arkansas.

May 11, 1959.

George F. Edwards, Texarkana, for appellant.

Bruce Bennett, Atty. Gen., by Russell J. Wools, Asst. Atty. Gen., for appellee.

JOHNSON, Justice.

Appellant, William R. Williams, was charged by separate informations with the commission of the following crimes: 1. Possession of beer in dry territory in excess of three gallons. 2. Possession of liquor in dry territory in excess of one gallon. 3. Transporting beer in dry territory in excess of three gallons without being a duly bonded carrier or duly licensed by the Public Service Commission to transport beer. 4. Transporting liquor in dry territory in excess of one gallon without being a duly bonded carrier or duly licensed by the Public Service Commission to transport liquor. The causes came on for trial and the jury found Williams guilty on all four charges. From fines totaling $1,500 comes this appeal.

For reversal, the following six points were urged.

1. The trial court erred in refusing to grant the appellant's motion for instructed verdicts of not guilty in both cases now on review. 2. It is against the policy of the law to multiply or carve different crimes out of one act. 3. The trial court erred in ruling that the court could take judicial notice that Little River County was a dry county. 4. The subdivision of one offense into many charges violates the rule against double jeopardy. 5. Evidence obtained in violation of the constitutional requirement that there be a search warrant is illegal, and inadmissible. 6. It was reversible error to permit officer Eddie Craig to testify when he had remained in the courtroom in violation of the law, the rule having been invoked.

The facts are briefly as follows: On the morning of September 3, 1958, appellant was driving his pink Oldsmobile 98 automobile (which was equipped with overload springs) north on Highway No. 71 about five miles south of Ashdown. A deputy sheriff of Little River County was driving south on the same highway and spotted appellant's car; he turned around and pursued appellant's car at a speed up to 120 miles per hour without gaining much on him. The pursuit continued into Ashdown with appellant running a number of stop signs and warning devices. Appellant finally turned into a dead end street where he was apprehended after he had turned his automobile around and attempted to drive out past the arresting officer. The officer caused appellant to get out of his automobile and placed him under arrest. The officer testified that at this point: "I said, 'come over here', and he did. I said 'turn around'; I said 'put your hands on the top of my car', and I searched him. I said 'I'm going to look in your car now', and he said, 'Hell, I've got some whiskey and beer in there.' " The deputy sheriff, aided by the city marshal of Ashdown, then removed Williams to the jail along with 25 cases of beer and over 4 cases of whiskey found in Williams' car.

Point one urged by appellant for reversal will be discussed last. Points two and four refer to the same issue and will be here discussed together.

Double Jeopardy. Appellant urges that "It is against the policy of the law to carve different crimes out of one act." As a general rule appellant's contention ordinarily would be sound. However, the test seems to be whether or not the Legislature has by separate statutes upon its own volition carved more than one offense out of the same act. In the case at bar the Legislature did the carving and the courts are bound by their culinary art. Here the appellant was found guilty of: 1. Possessing more than one gallon of liquor under Section 48-918, Ark.Stats., Act No. 91 of 1947. 2. Possessing more than three gallons of beer under Section 48-919.1, Ark.Stats., Act No. 347 of 1949; 3. Transporting more than one gallon of liquor under Section 48-921, Ark.Stats., Act 423 of 1947; and 4. Transporting more than three gallons of beer, Section 48-922.1, Ark.Stats., under Act 28 of 1953, all of which having been committed in a county legally voted "Dry" pursuant to Initiated Act No. 1 of 1942.

In Miller v. State, 222 Ark. 476, 261 S.W.2d 411, and Eoff v. State, 218 Ark. 109, 234 S.W.2d 521, we held that appellant's plea of guilty on one liquor charge, where the Legislature had by two separate acts, carved out of the same transaction two separate offenses, did not bar his prosecution for the other offense, hence, no double jeopardy. See: Offenses in relation to Intoxicating Liquors § 291, 22 C.J.S. Criminal Law p. 437.

Appellant in his requested instructions and motion for new trial raised an interesting question relative to the offenses for which he was tried contending in effect that since the law does not apply to a properly licensed retail liquor dealer or common carrier or bonded carrier or private contract carriers in certain cases, and since the State failed to prove that appellant was not exempted under one of these exceptions to the law, it would be the duty of the jury to return a verdict of not guilty. The trial court was correct in rejecting the contention of appellant. The general rule which is almost unanimously followed in this and other jurisdictions is that in liquor cases the defendant has the burden of proving the existence of a license or permit. To hold otherwise would place the burden on the prosecution to prove the negative of a proposition peculiarly within the defendant's knowledge, therefore the failure to prove the nonexistence of such a license is not subject to the objection that it deprives the defendant of the presumption of innocence. See: Williams v. State, 35 Ark. 430; Flower v. State, 39 Ark. 209; Evans v. State, 54 Ark. 227, 15 S.W. 360; Josey v. State, 88 Ark. 269, 114 S.W. 216, 44 L.R.A., N.S., 463; 30 Am.Jur. 731, Sec. 343.

Judicial Notice. In point three urged for reversal, appellant contends that the trial court erred in ruling that the court could take judicial notice that Little River County was a dry county. On this point we must agree that the trial court was correct in its ruling since this contention was settled in Skiles v. State, 150 Ark. 300, 234 S.W. 721, 722, when we said:

" * * * The adoption of the terms of the statute by an election of the people is a matter of which the court should take notice judicially. It...