Springer v. State

129 Ark. 106 | Ark. | 1917

Smith, J.

This appeal is prosecuted to reverse a judgment sentencing appellant to the penitentiary for the illegal sale of intoxicating liquors.

(1) There was a demurrer to the indictment upon the ground that it failed to allege the name of the person to whom the liquor was sold. During the time that the sale of intoxicating liquors was only a misdemeanor, under the laws of this State, this court became thoroughly committed to the doctrine that it was unnecessary to allege the name of the purchaser in charging an unlawful sale of liquor. The courts of the country are not in harmony on this question, and there are a number of courts of the highest authority which hold that it is essential to allege the name of the vendee of the liquor in the indictment for the unlawful sale thereof. It is insisted, on behalf of the State, however, that the decisions of this court are in accord with the weight of authority on this subject, and a very long list of 'cases, which evinces much research, is cited in support of this contention. We do not stop, however, to consider this question, as this court took its position on that subject in the early case of State v. Parnell, 16 Ark. 506, and has adhered to. this ruling in a number of subsequent cases. It is insisted, however, by learned counsel for appellant that a different rule should obtain now that the grade of the offense has been raised from a misdemeanor to a felony. A similar contention was made in the case of McNeil v. State, 125 Ark. 47, in which case we said:

“It is true the offense has been raised to the grade of a felony by the new law, fixing the punishment, but it is still not an offense against the property or person of an individual and the gravamen of the offense consists in the selling of the liquor, and it was not necessary, as held heretofore, to allege the name of the person to whom the liquor was sold. The offense is charged substantially in the language of the statute and in such a manner as to enable a person of common understanding to know what is intended, and the accused to understand what he is called upon to answer, and with a sufficient degree of certainty to enable the court to pronounce judgment on conviction, according to the right of the case. Howard v. State, 72 Ark. 586; Parker v. State, 98 Ark. 578; Quertermous v. State, 95 Ark. 61.”

(2) It is urged that the evidence in the case is insufficient to support the verdict. But a witness testified that he-purchased a pint of alcohol from appellant, and paid him a dollar therefor. We have held that the purchaser is not an accomplice of the seller, and that the statute requiring corroboration of the testimony of an accomplice to sustain a conviction did not apply in such eases. Wilson v. State, 124 Ark. 477, 187 S. W. 440. Portions of the testimony of this witness appear to indicate a lack of intelligence, or of candor; but it was the province of the jury to pass upon the veracity of the witnesses, and, as the jury evidently accepted as true the statement that the sale was made, further inquiry into that feature of the case is precluded.

(3) The alleged sale was made on either the 12th of July or of August, the witness being uncertain as to the month, and it is insisted that either date is too far removed from the dates of certain shipments of liquor to appellant to make relevant and material the proof of such shipments. It was shown that, during the months of January, February, March, April, May and June, 1916, appellant received consignments of liquor in larger quantities than would be required for his personal use, and the State proved the receipt by him of 36% gallons of whiskey during those months. Appellant testified that the condition of his health required him to use large quantities of liquor, and he further insists that the evidence is irrelevant and immaterial. The offense charged could not, of course, be committed by the mere receipt of large quantities of intoxicating liquors, whatever the purpose of their receipt may have been. Proof of a sale was essential to sustain a conviction; but the instructions made this perfectly clear. This evidence did tend to show that appellant had provided himself with large quantities of liquor, and that he was in position to commit the crime charged, and the evidence was not, therefore, objectionable upon the ground that it was irrelevant; It may have been entitled to but little weight — however, this was a question for the jury — but, as it did tend to support the charge preferred, it can not be held to be immaterial, and its admission was not prejudicial. Mason v. State, 127 Ark. 286, 192 S. W. 207.

(4) Appellant also complains that he was refused the right to show that others had received liquors in as large quantities as himself. There is no question here about the identity of the person who made the alleged sale. The purchaser and appellant were well acquainted, and the question between them is one of veracity, and not of identity, and it could profit appellant nothing to show that other persons had liquor in quantities sufficiently large to indicate an unlawful purpose in its disposition, and no error was committed in the exclusion of this evidence.

Finding no prejudicial error, the judgment is affirmed.