Winfrey v. State
| Decision Date | 11 March 1918 |
| Docket Number | 212 |
| Citation | 202 S.W. 23,133 Ark. 357 |
| Parties | WINFREY v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Crawford Circuit Court; Jas. Cochran, Judge; reversed.
Judgment reversed and cause remanded.
J. D Benson, Chas. I. Evans and J. H. Evans, for appellants.
1. The indictment charged no offense under the Bone Dry Act. 145 N.W. 451; 157 Id. 908; 48 L. R. A. (N. S.) 342; 154 P. 1050; 170 S.W. 749; 238 U.S. 190; 223 Id. 70; 197 Id. 13; 219 F. 794; 242 U.S. 311; 222 Id 370.
2. The court erred in its instructions. 50 Ark. 545. Also in the admission of testimony. 199 S.W. 21; 1 Wharton Cr. Ev 3262-6; 2 Id., §§ 690-1-2. The declarations of defendants were admissible as res gestae. Ib.; 85 Ark. 479; 12 Id. 782.
3. Inadmissible and incompetent testimony was admitted. There was no legal testimony to sustain the verdict.
John D. Arbuckle, Attorney General, and T. W. Campbell, Assistant, for appellee.
1. The offense charged was sufficient to warrant the orders of suspension and removal. Const. art. 7, § 27; 128 Ark. 183; 103 Id. 48.
2. The demurrer was properly overruled. 242 U.S. 311.
3. There was no error in the instructions. The Bone Dry Law was violated. 228 U.S. 525.
4. There was no error in admitting or excluding evidence. 127 Ark. 289; 48 Id. 34; 72 Id. 419; 43 Id. 68; 52 Id. 269; 37 Id. 373; 103 Id. 70; 129 Ark. 106; 127 Ark. 289; 84 Id. 487; 103 Id. 70.
5. The evidence was sufficient to support the verdict.
Appellants Winfrey and Bryan, together with one Oliver, were jointly indicted for the offense of transporting and delivering liquor from another State into this State. All of the three accused persons were tried together before a jury and Oliver was acquitted. Winfrey and Bryan were each convicted and have prosecuted appeals to this court.
A demurrer was filed to the indictment on the ground that it failed to state facts sufficient to constitute an offense, and the first ground urged here for reversal of the judgment is that the court erred in overruling the demurrer. The indictment alleges that the three persons accused, naming them, "unlawfully did transport into and deliver in this State certain alcoholic, vinous, malt, spirituous and fermented liquors and compounds and preparations thereof commonly called tonics, bitters and medicated liquors from another State, against the peace and dignity, " etc.
Section 1 of the Act of January 24th, 1917 (Acts of 1917, p. 41), under which the indictment was preferred, was construed in the recent case of Rivard v. State, 133 Ark. 1, 202 S.W. 39, and it is unnecessary to enter into any further discussion at length as to what the statute means. We held that it was merely directed against the shipment, transportation or delivery of intoxicating liquors from another State or territory or foreign country to another person, firm or corporation in this State, and that it does not prohibit a person from transporting liquor into the State for his or her own personal use, whether that use be lawful or unlawful. The words in the statute "from any other State, territory," etc., "to any person, firm or corporation within this State" relate back to each of the words "ship, transport and deliver" which precede them and qualify each of those words so that the act is construed to mean that in order to constitute an offense the shipment or transportation or delivery in this State must be from some other State or territory, etc., to some other person, firm or corporation within this State. A mere delivery of liquor in this State by one person to another, entirely disconnected from the act of transporting it into the State, does not constitute an offense under this statute. Other statutes make it unlawful to sell or give away liquors. It will be observed that the indictment uses the words "transport into and deliver" conjunctively, and thus charges both a transportation and delivery. It is necessary under an indictment for violating the terms of the statute to charge that the transportation or delivery was from without the State to a person, firm or corporation in the State, but we think that the language of the indictment when construed in its ordinary acceptation is sufficient to charge that the transportation and delivery was to some other person, firm or corporation. The word "deliver" when used conjunctively with the word "transport" necessarily carries with it the implication of a transfer of possession to some other person or separate entity. The word "deliver" is defined by lexicographers to mean "to yield possession of" or "to hand over" or "to surrender." The Supreme Court of Tennessee in the case of Bird v. State, 131 Tenn. 518, 175 S.W. 554, which we referred to with approval in the Rivard case, supra, held that the words "to ship" and the words "to deliver" necessarily implied a shipment or delivery to some one other than the carrier. Whatever doubt may exist as to the correctness of that interpretation of the use of the words "to ship," we think that the use of the word "deliver" in connection with the word "transport" necessarily implies the meaning of a transfer of possession to another, and that this language in the indictment is sufficient to charge the transportation and delivery of liquor by the accused persons to some other person, firm or corporation. It is not necessary in an indictment for this offense to specify the names of persons to whom the liquor has been transported or delivered. Johnson v. State, 40 Ark. 453. Nor is it necessary under an indictment for this offense to negative the use of the liquor for the purposes which constitute an exemption under the statute, that is to say, for sacramental or medicinal purposes. Section 16 of the statute provides that "it shall not be necessary to negative the exceptions herein contained, or that the liquors, bitters and drinks were ordered shipped, transported, or delivered for any of the purposes set out in the succeeding section hereof, but such exceptions may be relied upon as defense and the burden of establishing the same shall be upon the person claiming the benefits thereof."
The indictment was, therefore, sufficient to charge an offense against the provisions of Section 1 of the statute referred to.
However, we are of the opinion that the judgment against each of the appellants must be reversed for the reason that the case was submitted to the jury upon an entirely erroneous interpretation of the law by the court, and also for the further reason that the proof was not sufficient under the allegations of the indictment to establish the offense charged. The court instructed the jury that if the accused obtained alcoholic liquors in another State "and from that point brought the said liquors into Crawford county, this State" they were guilty under the statute, and refused to instruct the jury, at the request of appellants, that the bringing of liquor into this State for the personal use of the individual who brings it in does not constitute an offense. The rulings of the court on those instructions were in conflict with the law as declared by this court in the Rivard case, supra, and the judgments of conviction must for that reason be reversed.
It is insisted by the Attorney General in the argument here that notwithstanding the erroneous interpretation of the law by the trial court, the guilt of the two appellants is established by undisputed evidence in that the proof shows, without contradiction, that there was a delivery of liquor by appellants to another person in the State, and that the jury found upon legally sufficient evidence, and upon instructions free from error affecting that matter, that appellants transported liquors into the State. We cannot agree with the contention of the Attorney General, either that the testimony as to delivery to another person was uncontradicted, or that the evidence was sufficient under the particular charge in the indictment to show a delivery to another person. The date of the commission of the offense was alleged in the indictment to be on November 9th, 1917, and the proof of the State was directed to an offense committed on that date. There was also proof tending to show that the two appellants brought liquor into the State on another date, but it added nothing to the strength of the proof directed to the offense alleged to have been committed on November 9th, except in corroboration, so it is only necessary to call attention to the state of the proof with respect to the conduct of the appellants on the date mentioned in the indictment.
Appellants and Oliver lived in the...
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