140 Ark. 46 | Ark. | 1919
An indictment against appellant with two counts was returned by the grand jury of Johnson County, which, omitting the caption, reads as follows:
“The said John Henry Harris, in the county and State aforesaid, on the 15th day of March, 1919, did wilfully, unlawfully, and feloniously sell and give away, and was wilfully, unlawfully and feloniously interested in the sale and giving away of ardent, vinous, malt, spirituous and fermented liquors and alcoholic spirits, and a certain compound and preparation commonly called tonics, bitters and medicated iiquors, to one J. W. Carter, against the peace and dignity of the State.
Count 2.
“And the grand jury aforesaid, in the name and by the authority aforesaid, further accuses the said John Henry Harris of the crime of accessory to the sale of liquor, committed as follows, to-wit: The said John Henry Harris, in the county and State, and at the time aforesaid, did wilfully, unlawfully and feloniously did assist, abet, advise and encourage, and was wilfully, unlawfully and feloniously present, aiding, abetting and assisting, and ready and consenting to aid and abet in the commission of a felony, to-wit: The sale of liquor, which said felony was committed as follows: One Walter Evans, in the county and State aforesaid, on the 15th day of March, 1919, did wilfully, unlawfully and feloniously sell and give away, and was wilfully, unlawfully and feloniously interested in the sale and giving away of ardent, vinous, malt, spirituous and fermented liquors and alcoholic spirits, and a certain compound and preparation thereof, commonly called tonics, bitters and medicated liquors to one J. W. Carter, at which unlawful and felonious sale of liquor by tbe said Walter Evans to the said J. W. Carter aforesaid tbe said John Henry Harris did wilfully, unlawfully and feloniously aid, assist, abet, advise, encourage, and was unlawfully and feloniously present, aiding and abetting and ready and consenting to aid and abet as aforesaid, against tbe peace and dignity of tbe State of Arkansas.”
There was a trial on both counts, which resulted in a verdict of conviction .on the second count. Before the commencement of the trial appellant demurred to the indictment on the grounds that the same did not state facts sufficient to constitute a public offense, and that there was an improper joinder of separate offenses. There was also a demurrer specifically directed to the second count of the indictment on the same grounds set forth above. The court overruled each of the demurrers, and exceptions were duly saved.
“You are instructed that one who assists the purchaser in buying intoxicating liquors, and confines his participation in the transaction exclusively to the buying, and not to the selling, is not guilty of any offense. And if you find that the defendant acted solely as the agent or messenger of the purchaser, and did not in any manner assist the seller, if you find there was a sale, and that he had no pecuniary or other interest in the sale, he would not be guilty under the law. In other words, if defendant’s interest, if any, was solely in the purchase, and his efforts, if any, where directed solely to the buying or aiding in the purchase, if you find there was a purchase, then you will find him not guilty. ’ ’
The court refused to give the instruction as requested, but modified it and gave it with the words “on the first count of the indictment” added at the end. Proper exceptions were saved, and it is now urged that this was error which calls for reversal. We are of the opinion that appellant was entitled to the instruction as requested and that the court erred in refusing the request and in modifying the instruction limiting its operation to the first count of the indictment. It is conceded by the Attorney General that the instruction as requested correctly states the law on that subject in accordance with the decisions of this court. Bobo v. State, 105 Ark. 462; Wilson v. State, 130 Ark. 204; Ellis v. State, 133 Ark. 540. That being true, appellant was entitled to have his theory of the case submitted in the consideration of the charge involved in the second count. In fact, the instruction was not applicable to the commission of the crime in the method set forth in the first count, that is to say under the charge of a direct sale made by appellant himself, but in the second count he was charged with being present, aiding and abetting Evans in the sale, and this instruction was peculiarly applicable to the charge of the offense in that form. Appellant testified that his only participation with the transaction was in connection with one Patrick who purchased liquor from Evans. His contention was that he merely joined Patrick in the purchase of liquor or assisted Patrick in the purchase. The court gave an instruction defining what would constitute such an interest in the sale as would make appellant a guilty participant therein, but that instruction makes no reference to his participation merely as the agent or associate of the purchaser and does not cover the theory of the case set forth in the refused instruction which appellant requested.
There are other assignments of error which, in view of another trial of the case, are unnecessary to discuss.
For the error indicated in refusing to give instruction No. 1, the judgment is reversed and the case remanded for a new trial. .