130 Ark. 204 | Ark. | 1917
(after stating the facts). (1) Appellant contends that there was no evidence to show that the alleged offense was. committed after the passage of the act under which the appellant was indicted and convicted. This contention the Attorney General concedes to be true, and we find upon examination of the record that the confession of error of the Attorney General is well taken. The testimony fails to show the date upon which the sale is alleged to have taken place. There is no testimony to prove that the alleged sale occurred after the passage of the law under which appellant was convicted. The burden was upon the State to show this. Gill v. State, 38 Ark. 524. The act took effect the first of January, 1916. The indictment charges that the sale was in March, 1916, but there is no proof of the allegation. Steel v. State, 77 Ark. 441.
(2) In view of a new trial it is sufficient to say that we find no error in the rulings of the court in giving or refusing instructions. The instructions given conform to the law as already announced by this court in several cases. Williams v. State, 129 Ark. 344; Stuart v. State, 125 Ark. 232; Bobo v. State, 105 Ark. 462, and cases there cited.
The court did not err in refusing appellant’s prayer for instruction No. 1, for the reason that it' was covered by the instructions which the court gave. The prayers for instructions on the part of the appellant were not in correct form and were calculated to mislead the jury.
As one who acts as the intermediary between the purchaser and the seller is a necessary factor, without which the sale could not have been consummated, he is interested in the sale in the sense of the law, whether he had any pecuniary interest or not. But if one who is intermediary between the purchaser and the seller in effecting a sale of liquor acts solely as the agent or messenger of the purchaser, and does not in any manner assist the seller, and has no pecuniary or other interest in the sale, he is not guilty under the statute. In other words, if his interest is solely in the purchase and his efforts are directed solely to buying or aiding in the purchase and not in the sale, he is not guilty, for our statute does not make it unlawful to purchase liquor. Dale v. State, 90 Ark. 579; Fenix v. State, 90 Ark. 589; Whitmore v. State, 72 Ark. 14; Payne v. State, 124 Ark. 20, 24.
To be interested in the sale of liquor in the sense of the statute, is any interest whatever, pecuniary or otherwise, that operates as a motive and induces one to sell or to play a part in bringing about the sale of the prohibited liquors.
The remarks of the court to which objection is urged will not likely be repeated on another trial, and therefore we do not comment upon them.
For the error indicated the judgment is reversed and the cause remanded for a new trial.
