Withem v. State

• Decision Date: 21 November 1927
• Docket Number: 330
• Parties: WITHEM v. STATE
• Court: Arkansas Supreme Court

299 S.W. 739

175 Ark. 453

WITHEM v. STATE

No. 330

Supreme Court of Arkansas

November 21, 1927

Appeal from Little River Circuit Court; B. E. Isbell, Judge reversed.

Judgment reversed and cause remanded.

Dulaney & Steel and Shaver, Shaver & Williams, for appellant.

H W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.

OPINION

WOOD, J.

Tom Withem was indicted by the grand jury of Little River County. Omitting formal parts, the indictment charged that "the said Tom Withem, in the county and State aforesaid, on the 15th day of October, A. D. 1926, unlawfully and feloniously did sell and was unlawfully and feloniously interested in the sale and giving away of ardent, vinous, malt, spirituous, alcoholic and fermented liquors," etc. Indorsed on the back of the indictment was the following:

"No. 482--State of Arkansas v. Tom Withem, J. R. Wood. A true bill. __Foreman. Indictment for selling liquor. Filed in open court in the presence of all the grand jurors this 15th day of July, 1927. Natalie S. Williams, Clerk. By__D. C. Witnesses: Homer Darby."

It is not contended here that the verdict was contrary to the evidence. Therefore it is unnecessary to set out the testimony. The defendant moved to quash the indictment on the ground that no true bill had been presented, inasmuch as the indictment was not indorsed a true bill and signed by the foreman of the grand jury.

The court, on its own motion, gave instructions numbered from one to six. Instruction No. 1 is as follows:

"It shall be unlawful for any person, firm or corporation to sell or give away, or be interested, directly or indirectly, in the sale or giving away of any alcoholic, vinous, malt, spirituous or fermented liquors, or any compound or preparation thereof commonly called tonics, bitters or medicated liquors."

In the second instruction the court told the jury in substance that, if they believed from the evidence beyond a reasonable doubt that the defendant sold or gave away or was interested, directly or indirectly, in the sale or giving away of the liquors mentioned in the first instruction, they should find him guilty and fix his punishment at imprisonment in the State Penitentiary for a period of one year at hard labor.

The third instruction is as follows: "The jury are instructed that the indictment is not evidence of defendant's guilt; that the defendant is presumed innocent and not guilty as charged in the indictment, and that this presumption follows him throughout the trial until the jury are constrained to find him guilty from the evidence in the case, beyond a reasonable doubt; that the burden is upon the State to prove the defendant guilty beyond a reasonable doubt."

The fourth instruction defines reasonable doubt.

The fifth instruction was on the credibility of witnesses.

The sixth instruction is as follows:

"You are instructed that it is as competent to convict upon circumstantial evidence as upon positive testimony. Positive testimony is that of eye-witnesses, witnesses who testify as to the transaction that shows the guilt or innocence of the defendant. Circumstantial evidence is evidence of circumstances by which guilt or innocence is proved or disproved. In so far as the evidence is circumstantial in this case, to convict the defendant it is necessary that the circumstances not only point to and be consistent with the guilt of the defendant, but should also be inconsistent with his innocence."

The defendant presented seven prayers for instructions, all of which were refused by the court. The substance of the first prayer was that the burden of proof was on the State to prove the defendant guilty, and, unless the State had shown from the evidence, beyond a reasonable doubt, that the defendant did feloniously sell or give away, or was directly or indirectly interested in the selling or giving away of intoxicating liquors, they should find him not guilty.

The second prayer for instruction told the jury, in substance, that, if they had a reasonable doubt as to whether witness Darby might not be mistaken as to the identity of the defendant, then, before the jury would be authorized to convict, they should find the corroborating circumstantial or other evidence tending to establish his identity must be such as, with the other testimony, produced a degree of certainty in the minds of the jury so great that they had no reasonable doubt as to the identity of the defendant.

The third prayer for instruction, in substance, told the jury that the indictment was not a mere formal charge or accusation against the defendant, and is of itself no evidence of the defendant's guilt, and that no juror should permit himself to be influenced to any extent because of the indictment.

Prayer for instruction No. 4 told the jury that the defendant was entitled to the presumption of innocence, which attended him throughout the trial as evidence in his favor, and entitled him to an acquittal, unless the State produced evidence which convinced the jury beyond a reasonable doubt of the defendant's guilt.

Prayer for instruction No. 5 told the jury that the burden was on the State to prove the defendant's guilt beyond a reasonable doubt.

Prayer for instruction No. 6 was as follows:

"The court instructs the jury that the facts relied on by the State to show the defendant's guilt must not only be consistent with and point to his guilt, but must be inconsistent with his innocence; and if all the facts and circumstances of evidence, viewed together, are susceptible of two reasonable interpretations, one of innocence, and the other of guilt, the interpretation of innocence must be adopted in the defendant's behalf, and you should acquit him."

Prayer for instruction No. 7 is as follows:

"You are instructed that you will not consider the testimony with reference to the time he entered his plea of guilty in the justice court and the facts concerning that transaction."

The jury returned a verdict finding the defendant guilty, and fixed his punishment at imprisonment in the State Penitentiary for a period of one year. Judgment was rendered in accordance with the verdict, from which is this appeal.

1. Section 3008 of C. & M. Digest provides: "The concurrence of twelve grand jurors is required to find an indictment." Section 3009 provides: "When so found, it must be indorsed a true bill, and the indorsement signed by the foreman." The record shows that J. R. Wood was selected foreman of the grand jury that returned the indictment against the appellant. It is true his name appears above the words, "A true bill" instead of below, but that is wholly immaterial. His indorsement gives sanction to the indictment as being a true bill and is a compliance with the statute. The trial court therefore ruled correctly in overruling appellant's motion to quash the indictment.

In the cases of State v. Agnew, 52 Ark. 275, 12 S.W. 563, and McFall v. State, 73 Ark. 327, 84 S.W. 479, we decided that the above provision of the statute was directory. In the case of Taylor v. State, 169 Ark. 589, 276 S.W. 577, the indictment was not signed by the foreman of the grand jury, but was indorsed by him, and in that case we said: "The record reflects that the indictment was indorsed by the foreman of the grand jury. This meets the requirement of the statute." It will be observed that in none of these cases is it held that a failure to comply with the directory provision of the statute would be ground for quashing an indictment, neither are we called upon to decide, and we do not decide, that question in this case, for the reason, as already stated, that the indorsement as found on the indictment is a sufficient compliance with the statute, even if the same were a mandatory provision.

2. Appellant, in his exceptions to instruction No. 1 given by the court on its own motion, states: "The defendant objects generally to action of the court of its own motion reading the statute defining the crime charged in the indictment, generally, and specifically for the reason that the statute defines several separate offenses. It covers the sale directly or indirectly not only of whiskey, but various and sundry other items, and also charges the jury as to giving away of liquors, all of which is confusing and misleading to the jury and releases it in the realm of speculation as to other crimes and other offenses described by the statute, when there is no testimony in the case concerning any violation of the statute except a direct sale; and it further authorizes the jury to find him guilty for giving away liquors."

The appellant's fourth ground of his motion for a new trial assigns as error that the court erred in reading to the jury over the objection of defendant, § 6160 of C. & M. Digest. But the bill of exceptions does not show anywhere that the court read § 6160 to the jury. True,...