Walker v. StateWalker v. State
- Reporters:
- , ,
- Before:
- Wood
The appellant with J. J. Cotton and E. H. C. Crouse were jointly, indicted in the Grant Circuit Court for the crime of setting uр a distillery. The indictment, omitting formal parts, charged that the -appellant and others “in the cоunty and State aforésaid, on the second day of August, A. D. 1921, did Unlawfully and feloniously set up a distillery for the purрose of manufacturing distilled spirits for beverage purposes, against the peace аnd dignity of the State of Arkansas.” The appellant was tried separately. He was convictеd and sentenced to one and one-half years in the State penitentiary.
The testimony on the part of the State tended to prove that E. C. Hall and W. A. Florey, deputy sheriffs of Grant County, on the first dаy of August, 1921, went to appellant’s place in Grant County to look for a still. They found two barrels of mаsh containing about one hundred and twenty gallons about two hundred yards from Cotton’s house in the woods. About four or five o’clock in the afternoon they saw John Cotton and Houston Crouse come tо the mash and examine it. Cotton stirred it with a stick and said it was about ready to manufacture. The next mоrning Hall and one Smithson, another deputy sheriff, went back to watch the mash. When they came neаr, they saw John Cotton, Houston Crouse .and the appellant in the act of setting up a still, consisting of a sixty-gallon gasoline barrel for the tank of the still and á one and one-half inch galvanized piрe about ten or twelve feet long for the worm. There was also a trough there to plaсe the worm in. The appellant had hold of the pipe when they first saw him placing it to the tank. The appellant and those with him.started to run when they discovered the officers. The others got аway, but the appellant was arrested in some bushes within about twenty steps of the still. He had a gun, and wаs ordered to throw up his hands. After some hesitation he did so. His gun was loaded with BB shot.
The still found by the officеrs on the occasion mentioned, and which was identified by all of them, was brought into court. One of thе witnesses testified that he was familiar with the way in which stills were connected and set up, and, over thе objection of the appellant, this witness was permitted to make the connections of the various parts and set up and exhibit the still to the jury.
The testimony of appellant and his witnesses tеnded to show that on the day .appellant was arrested he was working on a shed near Cottоn’s house fixing to put .up a sorghum mill. Cotton and Crouse were there with appellant until about 10:30 a. m., when they went to the house. Before going to the house, they-were talking about the boys who had been getting watermelons out of appellant’s watermelon patch, and appellant asked Cotton why he didn’t go down there and take his gun with him and have some fun out of the boys. Cotton replied that he couldn’t use his gun with one hand. Appellant then told Cotton if he would give appellant the gun he would go and have some fun with the boys. Cotton sent the gun to appellant, which was loaded with one load of shot. About 11:00 or 11:30 a. m., appellant heard shots near the watermelon patch and went down back of the patch and was sitting in a bunch of bushes waiting for the boys, when he was ordered to put uр his hands. Appellant set his gun down and put up his hands. He was then arrested and taken to jail. He did not know thеre was any still there or anywhere near there — couldn’t see the still from the place where he was arrested. He didn’t see the still until several days thereafter. He never drank whiskey and was nevеr drunk in his life. He had never manufactured any whiskey, nor was he ever interested in the manufacture of whiskеy, and he was not helping to erect the still for that .purpose. The evidence was sufficient tо sustain the verdict.
The appellant here for the first time objects to the instructions which the court gave’ and to the ruling of the court in refusing his prayers for instructions and in modifying and giving these prayers as mоdified. In the recent case of Cegars v. State, 150 Ark. 648, we held that where no objections are made at the trial to the instructions of the court we cannot consider alleged errors predicated upon the ruling of the court in giving instructions. See also Morris v. State, 142 Ark. 297; Hardin v. State, 94 Ark. 65.
The court did not err in pеrmitting the witness to set up and exhibit the alleged still before the jury. The issue before the jury was whether or nоt the appellant’ had set up a still. Witnesses for the State testified that they found appellаnt and others in the act of setting up a still; that they captured appellant and took pоssession of the alleged still, which they identified as the one found by them, and exhibited the same in the presence of the jury, attaching its several parts. The witness who set up and exhibited the still in the presеnce of the jury testified that he was familiar with stills and the manner of their operation, etc. This was certainly competent testimony on the issue involved.
The record presents no error in the rulings of the trial court. The judgment is therefore affirmed.