107 Ark. 33 | Ark. | 1913
(after stating the facts). It is insisted for reversal that the court erred in overruling the demurrer to the indictment, in the giving and refusing of certain instructions, and that the testimony is not sufficient to sustain the verdict in that the venue was not proved and only one sale of liquor shown.
The indictment charges the offense under section 5125, of Kirby’s Digest, and follows the language of the statute, which this court has uniformly held is sufficient in charging a statutory offense, and the court committed no error in overruling the demurrer. Farmer v. State, 45 Ark. 97; Haupt v. State, 100 Ark. 409-414; Petty v. State, 102 Ark. 170.
The jury could have found from the testimony of the witness, evidently an unwilling one, that the sale of liquor occurred in the channel of the Mississippi Eiver, between the Arkansas bank and the towhead, east of island 35, and nearer to the Arkansas bank than to the towhead, or sandbar, which was distant about three-quarters of a mile, and if this channel be regarded as the main channel of the river at that point, the sale occurred nearer the Arkansas bank than the sandbar and consequently west of the middle of the main channel, and unquestionably within the jurisdiction of the State. The court correctly instructed the jury, relative to the State’s eastern boundary, declaring the law as laid down in Cissell v. State, 40 Ark. 504, and recently followed and approved in Kinnanne v. State, 106 Ark. 286.
It is strenuously urged that the testimony shows only a single sale of liquor, and is not sufficient to support the verdict of guilty of keeping a dram shop, and the cases of Blackwell v. State, 45 Ark. 93, and State v. Mazzia, 51 Ark. 177, are relied upon in support of this contention.
It is true that only a sale of four bottles of beer was proved in this case, and it does not appear to have been sold from a regularly equipped bar, but the witness stated that they had an ice box with beer in it, about middle ways of the boat; that there were no counters, of anything of that kind, and that the “appellant just set the bottles out as we called for them. ’ ’ He drank the beer on the boat and another man than the appellant opened it for him. He knew the beer was kept on the boat for sale, he went on the boát for the purpose of buying it, he did buy it of the appellant, and it was taken out of the ice box, the receptacle in which it was kept, and set out to him as he called for it. Under these circumstances, we do not think this case falls within the single sale doctrine, as announced in the cases relied upon by appellant. Appellant kept beer in an ice box for sale, and set it out to be drunk as it was ordered and paid for, after the manner of selling in dram shops, and we are of the opinion that the testimony is sufficient to sustain the verdict.
In Snow v. State, 50 Ark. 561, this court said: “A place where cider, birch beer, ginger ale and refreshments of like kind are sold, after the manner of dram shops as the proof shows was done in this case is a saloon within the letter and spirit of the prohibition of this statute. ’ ’
“A dram shop is a place where spirituous liquor is sold by the drink, and is commonly called a saloon.” 23 Cyc. p. 61. Webster defines it, “A place where spirituous liquors are sold by the dram or the drink; a bar room. ’ ’
In Brockway v. State, 36 Ark. 636, the court said, “It was proved that appellant kept a saloon in the house, kept a bar in the front room; the jury doubtless understood the words, “saloon” and “bar,” taken in their connection as meaning a dram shop, or grocery. ’ ’
Other cases define dram shop, within the meaning of the liquor laws, as a place where spirituous, vinous or malt liquors are retailed in less quantities than a gallon. Hewitt v. People, 186 Ill. 336; 57 N. E. 1077; Commonwealth v. Narzynski, 149 Mass. 68, 21 N. E. 228-229; Crank v. People, 80 Ill. App. 40; Strauss v. City of Galesburg, 203 Ill. 234; 67 N. E. 836.
Appellant complains of the refusal of the trial court to allow the official stenographer to report the examination by counsel of jurors offered for service, and their statements on their voir dire and of the court reprimanding his attorney in the presence of the regular panel of the jury offered to try the case and also of certain remarks of the prosecuting attorney in his argument to the jury.
The bill of exceptions does not disclose any evidence whatever of these matters complained of, which are only shown in the motion for a new trial. It is the office of the bill of exceptions to bring upon the record matters which do not appear on the judgment roll or record proper, and the motion for a new trial can not be used as a vehicle for that purpose, and therefore these assignments of error can not be considered here, on appeal. Foohs v. Bilby, 95 Ark. 303; Cox v. Cooley, 88 Ark. 350; Cravens v. State, 95 Ark. 321.
Upon the whole case, we do not find any prejudicial error committed and the judgment is affirmed.