Evans v. State

54 Ark. 227 | Ark. | 1891

Cockrill, C. J.

1. Forme conviction. r There are two fatal defects in the appellant’s plea of former conviction. First, it does not verify the alleged conviction by the record. Bradley v. State, 32 Ark., 722; Fluty v. State, 45 id., 97. Second, the plea itself does not allege that the former conviction was for the offense the second prosecution was intended to punish. That allegation is as necessary in prosecutions for selling whisky as in prosecutions for other offenses. State v. Blahut, 48 Ark., 34. For aught that appears in the plea, the indictment and proof in the first prosecution may have identified the criminating sale by means other than the time at which it was made ; as that it was made to a different person; or, if to the same person, that it was made in another locality or storehouse than that relied upon in the second prosecution. As each sale was a separate offense, the seller could be legally convicted for each. State v. Blahut, 48 Ark., supra. The demurrer was therefore properly sustained to the plea.

2. Burden of proof as to licenseThe proof showed that the defendant was the actor in 1 selling the whisky. To justify the sale it devolved upon him to show that he had a license to sell, or, if he was selling as the agent of another, that his principal had license. Without proof of a license to the owner to sell, the ownership of the liquor was immaterial. Berning v. State, 51 Ark., 550; Rana v. State, ib., 481; State v. Devers, 38 Ark., 517.

The charge to the jury was not prejudicial to the appellant, his prayers for instructions were rightfully rejected, the testimony sustains the verdict, and the judgment is affirmed.