38 Ark. 656 | Ark. | 1882
The indictment in this case charged: “That S. R. Waller, on the twenty-sixth of September, 1881, in the county of Conway, unlawfully was interested in the sale of one pint of beer, malt and fermented liquor, to one W. P. Wells, a minor, without the written consent or order of the parent or guardian of the said minor.”
The defendant demurred to the indictment; the court overruled the demurrer; he was tried on plea of not guilty, convicted, fined $50, refused a new trial, took a bill of exceptions and appealed.
I. The first ground of the demurrer to the indictment was, that it did not state the age of the party to whom the liquor was sold.
The indictment alleges that he was a minor, the term used in the Statute (Sec. 19, Act of March 8th, 1879), and that was sufficient.
The material matter was, that he was a minor; his exact age, below majority, was of no legal consequence. The meaning of the word “minor,” as used in the Statute, is well known and commonly understood.
II. The second ground of demurrer was, that the indictment did not charge defendant with selling, and did show in what way he was interested in the sale. It turned out, in evidence, that defendant was a licensed keeper at Morrilton, and lager beer was sold to the minor named, at his saloon; but the witness for the State, who was the minor, Wells, could not remember that the sale was made to him by the defendant.
When the sale is made by the accused, it may be so •charged; but where the sale is not, in fact, made by him, personally, but he is interested in the sale, he has no good cause to object to a charge made in accordance with the facts. The charge in the indictment was, that he was interested in the unlawful sale made to the minor. It was sufficient to follow the language of the Statute. How he was interested, whether as owner, or part owner of the lager beer sold to the minor, or a share in the profits of the sale, was matter of evidence.
III. The third ground of demurrer was, that the indictment did not charge that the minor had parents or a guardian.
It was sufficient for the indictment to follow the language of the Statute in negativing the consent of the minor’s parent or guardian. If he had neither, no consent could have been procured, and he could have bought no lager beer, unless sold to him illegally; and the deprivation would, perhaps, have been better for him.
IY. On the trial, the witness for the State, W. P. Wells, testified that, when hut twenty years of age, and within twelve months before the finding of the indictment, he bought and paid for lager beer, at defendant’s saloon, in Morrilton. That defendant staid at the saloon, and liquors, whisky, wines, and beer were kept for sale there. Witness did not know whether it was defendant’s saloon or not; it was called his saloon, and there was a sign out, “S. R. Waller’s Saloon.”
The State was permitted to read, from the county court record, against the objections of defendant, an order granting to S. R. Waller, a license to keep a dram shop, at Morrilton, in Conway county.
The order was competent, as tending to prove that defendant was the owner of the saloon at which witness, Wells, purchased the lager beer, and, therefore, interested in the sale.
V. The court charged the jury, in effect, that if they found, from the evidence, that defendant was interested in the sale of the lager beer to the minor, Wells, as owner, or part owner, thereof, etc., he was liable; and refused to charge them that it was unnecessary to prove that the sale was made by him, personally; or that he had knowledge, before the sale, that it was to be made ; or consented to, or, in some manner, participated or took part in such sale.
It was sufficiently proved that the sale was made to the minor, at defendant’s saloon, and in his dram-shop business ; and that was sufficient to make him liable. Robinson et al. v. State, ante.
VI. It was not proved that the lager beer sold to the minor was malt and fermented liquor; but the court properly treated this as matter of common knowledge.
Affirmed.
