Wilson v. State

• Decision Date: 02 July 1917
• Docket Number: 81
• Citation: 196 S.W. 921,130 Ark. 204
• Parties: WILSON v. STATE
• Court: Arkansas Supreme Court

196 S.W. 921

130 Ark. 204

WILSON v. STATE

No. 81

Supreme Court of Arkansas

July 2, 1917

Appeal from Prairie Circuit Court, Northern District; Thomas C Trimble, Judge; reversed.

Judgment reversed and cause remanded.

Emmet Vaughan, for appellant.

1. Under the evidence, if defendant is guilty of any crime, it is for violation of Kirby's Dig., § 5135, making it a misdemeanor to procure intoxicating liquors for another. But he was not indicted for that offense, but the indictment was under section 2, Act No. 30, Acts 1915, page 98. This act does not repeal section 5135 supra. The act does not apply to this case. Defendant merely purchased liquor for others as agent; he did not sell any. 90 Ark. 589; 72 Id. 14. The penalties of the law are against the seller and not against one who buys. 90 Ark. 579; Ib. 589; 12 Cyc. 447; 124 Ark. 447; 124 Ark. 20. There is no evidence of the date of sale, which is material. If before January 1, 1916, it was not a felony.

2. The verdict is contrary to law. Instruction No. 1 should have been given for defendant. No. 2 is the law applicable to the facts of this case. 188 S.W. 815. No. 3 should have been given as asked by defendant. If defendant only aided in the purchase of whiskey, he was not guilty. 124 Ark. 20.

3. One who acts as the agent or messenger of another in purchasing liquor is not guilty of making a sale, within the meaning of the prohibitory statute. 90 Ark. 579, 589; 25 Conn. 40; 25 Fla. 25; 52 Id. 409; 100 Ga. 579; 107 Id 693; 127 Id. 283; 15 Ill.App. 288 135 Iowa 523; 83 Kan. 183; 140 Ky. 146; 143 Id. 355; 115 Mo. 428; 60 Tex.Crim. 611; Ann. Cas. 1912 C 634.

There is no evidence that appellant sold the whiskey.

4. The court erred in instructing the jury upon the weight and sufficiency of the evidence.

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

1. The evidence shows a typical case of bootlegging. Appellant acted as the agent of the seller and the procurer or intermediary. It was not necessary for appellant to have a pecuniary or financial interest in the liquor or transaction, any interest or motive will be deemed sufficient. Both Kent and appellant were guilty. 125 Ark. 232; 105 Id. 462.

2. There is no error in the instructions. The remarks of the court can not be complained of. McDaniel was appellant's witness. The guilt of appellant was clearly established by his own witness and himself, and the instructions and comments of the court are immaterial. 104 Ark. 317; 93 Id. 313; 81 Id. 247; 73 Id. 453; 72 Id. 613.

3. There is no proof in the record as to when the sale occurred. The burden was on the State to show that it occurred between January 1, 1916, and the time of the finding of the indictment. There is an utter lack of proof and a reversal is imperative. Act No. 30, Acts 1915, p. 98; 38 Ark. 524; 77 Id. 441.

STATEMENT BY THE COURT.

Appellant was convicted under an indictment in correct form which charged him with unlawfully and feloniously selling and being interested in the sale of intoxicating liquors, on or about the day of March, 1916, contrary to the provisions of Act No. 30 of the Acts of 1915.

Witness George Brightman, on behalf of the State, testified that Wilson told witness where he could get some booze. Witness went to the place designated and sat down and in a little while appellant and one Kent came back. Witness, the appellant and Kent sat down on a bench, appellant being between witness and Kent. Witness handed appellant a dollar and appellant slipped the booze over to witness. Appellant reached over like he was giving the dollar to Mr. Kent and witness thought he dropped it in Kent's hand and got the whiskey from Kent and slipped it around behind the witness. This occurred in about half an hour after witness asked the appellant about the booze. When witness asked where he could get some booze appellant said he might find some. Witness did not tell him where to go. Witness never bought any whiskey from Kent before that time. Witness told appellant to go and get him some whiskey. Dock McDaniel was with witness on that occasion.

McDaniel was introduced as a witness for the defense and testified that he met the appellant that night; that he was with George Brightman. He asked appellant if he could get witness some whiskey. Appellant replied that he didn't know, he would try to. Witness and George Brightman gave appellant a half dollar apiece; that Mr. Kent came along; that they were standing right close to where the railroad crossing is. Appellant spoke to Kent. Witness was about ten feet from Kent and appellant. Kent and appellant walked on down the road a piece, and appellant and Kent were standing there talking to some other colored fellows, and after they got through talking they came on back to where witness and Brightman were waiting and appellant handed Brightman the whiskey and witness and Brightman walked off and drank it.

Appellant himself testified as follows: "Mr. Brightman met me out in the middle of the street and says, 'Henry, do you know where I can get some booze?' I says, 'Mr. Brightman, I don't sell no booze.' He says, 'I know you don't, Henry. Mr. Kent has some and he won't sell that. I thought you knew where you could get some.' And I says, 'I don't know whether I can or not.' Mr. Kent was coming down the street, and I says, 'Wait and I will see;' and I spoke to Mr. Kent, and he crossed the railroad track and goes right down towards Beine creek, and he was not gone but a little while and come back to where George Brightman, George Loving and I were sitting on the bench. The bench was just like that, and I sat right there. Mr. Brightman sat right there. George Loving sat right there. The bench extended out like that, and Mr. Kent sat down on the end of the bench. Mr. Kent pushed the whiskey behind me like that, and Mr. Brightman reaches behind me and gets the whiskey and puts the dollar down here. He intended to put it on my leg but I knocked it off. Mr. Kent got the dollar from behind me and I never did touch the whiskey."

The court instructed the jury, in substance, that it was material for the State to prove the charge as alleged; that if appellant sold the whiskey or was interested in the sale, either directly or indirectly, or if he aided any one to bring about a sale to another, he would be guilty; that if money was given appellant to procure whiskey from some one unknown to the party who wanted to buy, or if the party who wanted to buy did not know where he could get the whiskey and appellant went and procured the whiskey from some one unknown to the buyer he became the agent of the seller and was equally as guilty, and if the jury believed that such were the facts beyond a reasonable doubt they should convict the appellant and assess his punishment at one year in the penitentiary.

Appellant requested the court to tell the jury that as a matter of law before they could convict they must find from the evidence that appellant was interested either directly or indirectly in the sale of intoxicating liquors as charged in the indictment; and further asked the court to tell the jury that the term "directly or indirectly interested" means that defendant must have some interest in the sale, and that if they found from the evidence that appellant acted simply as an intermediary between the purchaser and seller and had no interest directly or indirectly in the sale he would not be guilty. In other words, if the jury found from the evidence that Brightman gave the money to appellant with which to purchase the said liquor, and that the appellant purchased the same and delivered it to Brightman, appellant was the agent of Brightman, and...