77 Ark. 480 | Ark. | 1906
(after stating the facts.) The naming of the offense “Sabbath breaking,” instead of “selling intoxicating liquor without license,” was inaccurate. But this mistake did not vitiate 'the indictment, since the “particular offense was made distinct and certain by the statement of the facts constituting it.” Johnson v. State, 36 Ark. 242. “The name of the crime is controlled by the specific acts charged.” State v. Culbreath, 71 Ark. 80. That appellant was fully advised of the crime and understood it is shown by his plea of “not guilty to selling liquor without license.”
The evidence was sufficient here to support the verdict. No objection is urged to the charge of the court. The court did not err in overruling the motion for new trial on the ground of “newly discovered evidence.” True, the evidence was important, as tending to corroborate evidence at the trial tending to show that the cider was not intoxicating, and.that appellant did not sell same in November as alleged. Appellant contends that he could not have known of this evidence until the time of the sale was revealed at the trial. But he did not ask for a postponement or a continuance of the case when the time was revealed during the trial. He did not claim to be surprised then.
The whole matter was within the sound discretion of the court, which it has not abused.
Affirm.
