text:
    Cole v. State.
    Opinion delivered September 24, 1923.
    Intoxicating liquors — possession op liquors in hotel. — Where defendant was operating a hotel, and a bottle of whiskey was found in rooms which she occupied as her home, such possession was a violation of Crawford & Moses’ Dig., § 6169, making it unlawful for any person to have in possession - any alcoholic liquors in any “hotel.”

      Appeal from Greene Circuit Court, Second Division; G. E. Keck, Judge;
    affirmed.

      J. M. Futrell and M. P4 Huddleston, for appellant.
    • The only question presented is whether or not it is a violation of the statute for one to have a small quantity of corn whiskey in his possession in his home, when that home happens to be a part of a hotel. We think it is not such violation. C. & M. Dig., § 6169; 42 Ark. 502; 70 Ark. 129 ; 145 Ark. 559; B. C. L., Judgments, § 152, pp. 144 and 224. •
    J. S. Utley, Attorney General, Jno. L. Carter, Wm. T. Hammock and Darden Moose, Assistants, for ap-pellee.
    The statute makes it unlawful to keep, possess or have in possession, or to permit another to store, keep, possess or have in possession in any hotel, etc., any intoxicating liquor. The trial court’s finding was correct under the' facts of this case.
   Wood, J.

The appellant was convicted for the crime of storing intoxicating liquor in her hotel in Paragould, Greene County, Arkansas. • The undisputed evidence proved that a small bottle of corn whiskey, designated as “white mule” by the witnesses, was found in the room of appellant, covered up in a wardrobe. One or two empty bottles which had contained whiskey were found. Some of these were found in the girls’ rooms in the hotel and some out on the back porch of the hotel. One empty pint bottle which had contained whiskey was found upstairs in a- guest room occupied by a railroad man, and a fruit jar which had contained whiskey was found on the pantry shelf in the kitchen. Eight or ten bottles that had contained whiskey were found on the premises. The hotel was the home of the appellant. She lived there with her husband until he was sent to the penitentiary in December of 1922 or January of 1923. Appellant and her husband had been running the hotel for four or five years. While her husband was there, he was indicted for selling whiskey from this hotel, and one time the officers found two or three quarts of liquor in the coal house something like one hundred feet north of the hotel, down under the floor. Appellant had been operating the hotel since her husband was sent to the penitentiary.

The appellant testified that she had been operating the Cole Hotel since January, 1923, and that before that time it was operated by her husband .with her assistance as his wife. She occupied two rooms in the hotel as her home; that these rooms were not used for any other purpose except her home. She didn’t know that there was any liquor in her wardrobe. There were empty bottles around there, on the back porch and in the pantry. She didn’t know how they came to be there, only they might have been brought by guests, and she occasionally saw some of them around the hotel. The two rooms which she occupied as a home were across the hall from the office, and were the only two rooms on thé lower floor of the main hotel on that side of the hall. They are all under the same roof, but not used for anything except for her rooms, and could not conveniently be used as a part of the hotel. They were the only two rooms in the hotel fit for a living compartment. Thé guest rooms, fifteen in number, were all upstairs; Appellant looked after the hotel in the daytime and had a man on duty at night.

By consent the cause was submitted' to the court sitting as a jury, and the court, over the objection of appellant, declared the law to be “that intoxicating liquor having been found on the premises occupied and' controlled by the defendant and used as á hotel, renders her ■guilty of violating the law against storing liquor in á hotel, notwithstanding the fact that the' liquor was found in that portion of said premises occupied and used by defendant exclusively as her homestead.” The appellant excepted to the ruling' of the court. ' "

The appellant asked the court to declare the law as follows:' “That the liquor in question having'' been found in the wardrobe in a room occupied and used by defendant exclusively as her homestead and not in any sense or for any purpose as a hotel, defendant is not guilty of violating the law against storing liquor in a hotel.” The appellant also asked the court to declare the appellant not guilty, under the undisputed evidence. The court refused appellant’s prayers for instructions, to which ruling the appellant duly excepted.

1. The only question presented for decision is whether or not the court erred in its declaration of law. Sec. 6169 of Crawford & Moses ’ Digest reads in part as follows: “It shall he unlawful for any person * * * to store, keep, possess, or have in possession or permit another to Store, keep, possess, or have in possession any of the liquors and beverages mentioned in § 6165 of this act * * * (which includes any alcoholic, vinous, malt, spirituous, and fermented liquors, etc.) * * * in any * * * hotel,” etc. The appellant did not offer any specific objection to the declaration of law made by the court. The court might have found from the testimony in the case that the appellant had knowledge of the fact that liquor was being kept in the hotel that she operated. The appellant testified that she did not know there was any liquor in her wardrobe, but the court might have found the fact to be, notwithstanding the appellant’s testimony, from the facts and circumstances detailed in evidence, that appellant was cognizant of the fact that liquor was being kept in her hotel-, and that she herself had a bottle of whiskey in her possession. The testimony therefore, being’ sufficient to establish the fact that the appellant had in her possession, in the rooms which she occupied as a home in the hotel operated by her, a bottle of liquor, the court correctly declared the law, and correctly adjudged the. appellant guilty of the crime charged. The rooms occupied by the .appellant as her home and the guest chambers were all under the same roof, and this building was known as the “Cole Hotel.” It was being operated by the appellant as a hotel at the time the liquor was found therein.

We are convinced tbat it was tlie intention of tlie lawmaker's to prohibit tbe storing, keeping, and possessing of liquors in the home of any person, if tbat home also was included in, and a part of, the building which such person operated as a hotel. The building, under the undisputed testimony in this record, was a hotel, notwithstanding the fact that the appellant had segregated certain rooms therein as her own home. Any other interpretation of this statute would open wide the door for manifold evasions to defeat the express purpose of the lawmakers, which was to prohibit the storing, keeping, or possessing of the liquors -mentioned in § 6165 of C. & M. Digest in any of the buildings or places designated in the statute as set apart and operated for the uses therein specified.

There is no error. Let the judgment be affirmed.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    McDoNald v. State.
    Opinion delivered September 24, 1923.
    1. Continuance — discretion of court. — 'Where one accused of an assault with intent to rape moved for a continuance on account of the absence of the prosecutrix from the State, alleging that she was a material witness in his behálf, and that, if present, she would testify to certain facts which he could not prove by any other witness, hut he failed to show that he had exercised due diligence to have her present, and did not request a postponement to give him an opportunity to take her deposition, it was not an abuse of the trial court’s discretion to refuse a continuance or to allow accused to read as evidence the facts set up in his motion.
    2. Criminal law — motion for continuance as evidence. — Where the court in a criminal case denied a motion for continuance, it was not error to refuse to allow accused to read as 'evidence the facts alleged in such motion,
    3. Criminal law — examination of accused — objection.—A ruling of the court permitting defendant to be cross-examined as to his conviction for another crime will not be considered on appeal where no objection was taken at the time it was made.

      4. CRIMINAR LAW — COMPETENCY OP MEDICAL EXPERT. — A qualified medical expert is competent to testify that, in her opinion, bruises on the arms of the prosecutrix in a case of assault with intent to rape were made by finger nails or something similar.
    5. Rape — instruction.—The defendant in a case of assault with intent to rape asked the following instruction: “You are instructed that under the. law, before defendant can be convicted of the crime of assault to rape, you must find from the evidence beyond a reasonable doubt that defendant committed some overt act which was the beginning of the attempt to ravish, and not merely a preparation, and that such overt act was accompanied by the specific intent to accomplish his purpose against the will of her, the said G. W.” The court modified the instruction by striking out. the words italicized. Held that the instruction as modified was complete and correct.
    6. Criminal law — instruction—use op language op opinion.— The mere fact that certain language has been used by the Supreme Court in rendering an opinion is not of itself sufficient to justify the use of the same language by a trial court in its instructions .to the jury.
    7. Criminal law — argumentative instructions. — It is not error for the trial court to refuse prayers for instructions that are argumentative in form.
    8. Criminal law — argumentative instruction. — In a prosecution for assault with intent to commit rape, an instruction that, even though at the time of the alleged offense accused drew a pistol and pointed it at the prosecuting .witness,, this would not constitute an assault with intent to commit rape, was properly refused as being argumentative.
    Appeal from Craighead Circuit .Court, Second Division; G. E. Keck, Judge;
    affirmed.

      M. P. Huddleston, Gautney $ Dudley, Denver L. Dudley, for appellant.
    1. • The continuance ought to have been granted. Appellant had the right to assume that this prosecuting witness would appear in conformity with law as a witness, and diligence on his part cannot be charged against him, unless it can be shown that he knew she could not, or did not intend, to be present as a witness. '99 Ark. 394; Id., 547. ' .
    2. It was error to permit the prosecuting attorney to ask the defendant if he had not been convicted of carnal abuse in another connty and sentenced to the penitentiary. 60 Ark. 450; 6 A. L. R. 1616.
    3. The eonrt erred in striking ont of instruction 6 requested by appellant the word® “and not merely a preparation” As asked the instruction stated the law as to assault with intent to rape as recognized by this court. 77 Ark. 37; 105 Ark. 218.

      J. S. Utley, Attorney General, John L. Carter, Wm. T. Hammock and Harden Moose, Assistants, for appellee.
    1. There was no abuse of discretion in refusing the continuance. No diligence whatever, was shown. 99. Ark. 394; 110 Ark. 409; 133 Ark.. 239; 94 Ark. 169; Wood v. State, 159 Ark. 671, and cases cited.
    2. The question put to the defendant was not objected to at the time. He cannot be heard to urge That as error here. 73 Ark. 158; 96 Ark. 52; 66 Ark. 120; 103 Ark. 70; 117 Ark. 64;- 103 Ark. 165. ■ The objection is not tenable. This was on cross-examination, and the question merely went to defendant’s credibility as a witness. Clayton v. State, 159 Ark. 592; 133 Ark. 272; 143 Ark. 420; 146 Ark. 201; 141 Ark. 504.
    3. “When a witness has, by experience and education, gained special knowledge and skill relative to matters involving medical science, he is entitled to give his opinion thereon.” 94 Ark. 544, and authorities cited.
   Wood, J.

This is an appeal from the judgment' of the Craighead Circuit Court sentencing the appellant to imprisonment in the State Penitentiary for a period of five years for the crime of assault with intent to rape. Appellant’s motion for a new trial assigned forty-five errors in the rulings of the court. He abandons here all of these alleged errors except seven, which he urges as reasons for reversal of the judgment, and which we will consider in the order presented in his brief.

1. “That the court erred in refusing to grant defendant’s motion for a continuance.” Appellant was arrested ón a warrant issued by a magistrate of Greene County charging- him with assault with intent to rape one Grace Worthington. At the preliminary hearing before the magistrate G-race Worthington appeared and testified as a witness for the State, and was cross-examined by the appellant. The appellant was bound over to the grand jury of Greene County, and was thereafter indicted by the grand jury of that county for the crime charged. After the preliminary hearing the prosecutrix returned to her home in St. Louis, Missouri. The venue' was changed to the Craig-head Circuit Court, where the trial was had. During the trial .the sheriff of Greene County went to St. Louis for the purpose of ascertaining whether or not the prosecuting witness was there, and found that she was there, confined to her room with measles, and on that account was unable to be present as witness at the trial. The appellant filed his motion to continue the cause for the term, in which he alleged that the prosecutrix was a material witness in his behalf, and he alleged that she, if present, would testify to certain facts set forth in the motion, which facts, as alleged, were material to his defense. He alleged that the prosecutrix was a resident of St. Louis, and he expected her to be present; that the facts were true, and that he could not prove the same 'by any other witness; that the witness was not absent through connivance or procurement of appellant, and that if the cause were continued he could have her present at the next term of the court, or take her deposition and have the benefit of her testimony; that he had no knowledge of the fact that the prosecutrix would not be present until court convened April 23, 1923, the day the trial began. The motion was in legal form and duly verified. No facts are alleged in the motion which show that the appellant had exercised due diligence to have the witness present. After ascertaining that she was ill with measles and on that account confined to her home in St. Louis, and that she could not be present at the trial, the appellant did not request the court to postpone and set the cause for a later day to give him an opportunity to take the deposition of the witness.

The witness was beyond the jurisdiction of the court, and her attendance could not have been compelled, bnt the appellant, by exercising due diligence, might have obtained her deposition, for aught the record shows to the contrary. In a very recent case we said: “We have uniformly held that it is a matter within the sound discretion of the trial court to grant or refuse a continuance.” Wood v. State, 159 Ark. 671, and cases there cited. In the above case the circumstances as stated did not show any abuse of discretion upon the part of the trial court in refusing to grant the appellant a continuance for the term. Among the circumstances in that case it was shown that the witness was sick, and no postponement of the case was asked until it could be ascertained how sick the absent witness was. In the case at bar no postponement of the case was asked by the appellant in order to give him an opportunity to take the deposition of the absent witness. The court did not err in overruling the motion for a continuance, and it follows likewisé that the court did nor err in refusing to allow appellant to read as evidence the purported facts set up in such motion.

2. “That the court erred in permitting the prosecuting attorney to ask the defendant if he had not been convicted of carnal abuse at Piggott, Clay County, Arkansas, and sentenced to the penitentiary.” ' No objections were made or exceptions saved to. the ruling of the court in permitting the cross-examination of the appellant by the prosecuting attorney in the manner indicated in this ground of the motion for a new trial. Therefore this assignment of error cannot avail the appellant. Since the question was propounded without objection and exception to the ruling of the court at the time it was asked, we cannot review the alleged error. Taylor v. State, 73 Ark. 158; Clardy v. State, 96 Ark. 52; Williams v. State, 103 Ark. 70; Stevens v. State, 117 Ark. 64-70.

3. “That the court erred in permitting the witness, Dr. Olive Wilson, to express her opinion as to the instrument or thing that caused the scratches or bruises on the arm of the prosecuting witness.” Dr. Wilson testified that on the day following the night the assault was alleged to have been made she had occasion to examine the body of the prosecutrix, and that she found long scratches on her legs from her knees almost to her heels, and found scratches on her arms that seemed to have been made with finger-nails. And again she testified that’ the scratches were on the back of the arm and were circular as though a finger-nail might have done it. The marks were small circular — not entirely round, but partly so. The -witness qualified as an expert. She was a graduate of the Northwestern University of Chicago, and had practiced her profession for thirty7 two years. She had observed wounds and scars on human beings, and, from her experience, she was able to tell the nature of the instrument from the wound inflicted. After so qualifying, she stated that the scratches might have been made by a finger-nail; that they looked as though they might haye been made by finger-nails pressing deeply into the .flesh (demonstrating to the jury what she meant to express.)

The appellant objected to that part of the testimony of the witness in which she stated that, in her opinion, the marks on the arms of the prosecutrix were made by finger-nails, or something similar. The testimony was competent. In Miller v. State, 94 Ark. 538-544, we said: “When a witness has, by experience and education, gained special knowledge and skill relative to matters involving medical science, he is entitled to give his opinion thereon.” The scratches on the body of the prosecuting witness observed by the expert were in the line of her profession and experience, and she was thereby peculiarly fitted to' express her opinion as to the appearance of these wounds, and, from such appearance, the kind of instrument by which they were made. See above case and authorities' there cited.

4. “That the court erred in refusing to give defendant’s instruction No.- 6, and in modifying the same and in giving it .as modified.” The instruction asked by the defendant is as follows: “You are instructed that, under the law, before defendant can be convicted of the crime of assault to rape, you must find from the evidence, beyond a reasonable doubt, that defendant committed some overt act which was the beginning of the attempt to forcibly ravish G-race Worthington (and not merely a preparation), and that such overt act was accompanied by the specific intent to accomplish his purpose against the will of her, the said Grace Worthing-ton.” The court modified the instruction by striking out the words in parentheses, towit: ‘ ‘ and not merely a preparation,” and gave the instruction as modified. To sustain this assignment, the appellant relies upon the cases of Anderson v. State, 77 Ark. 37, and Douglas v. State, 105 Ark. 218. In these cases we held: “The statute of this State requiring the unlawful act to be coupled with the present ability to do the injury clearly indicated that the unlawful act must be the beginning or part of the act to injure or the perpetration of the crime, and not of the preparation to commit some contemplated crime.”

The instruction, as modified and given by the court, was complete and correctly declared the law, without the words in parentheses which the court struck out. The words, .“and not merely a preparation,” which the court struck out of the instruction, it is true, is the language of a judge of this court in announcing the law applicable to bases of this character, but it is not always correct to copy the exact language’of an opinion of this court as an instruction to be given to a jury in a particular case. The exact language of this court in delivering an opinion, copied and offered as an instruction in a case, might be argumentative and misleading. Whether such an instruction is correct would depend entirely upon the particular facts of the case. Here the language stricken from the instruction was not necessary, as we have said, to make the instruction a complete and correct declaration of law, and in the form offered, under the facts of this record, was argumentative. For, if the defendant committed «orne overt act which was the beginning of an attempt to forcibly ravish the prosecutrix, then such act was not merely in preparation for the attempt. It had gone beyond that stage.

In Central of Georgia Ry. Co. v. Hartley, 103 S. E. 259, it is held, quoting syllabus: “Appellate courts in discussing cases frequently malee use of language which, though embodying sound principles of law, is not intended to be adjusted to the requirements and proprieties of a charge to be given to juries.” Atl. & W. P. R. Co. v. Hudson, 51 S. E. 29, 123 Ga. 108; So. Cotton Oil Co. v. Skipper, 54 S. E. 110, 125 Ga. 368; Little v. Salter, 163 N. W. 447-454. “The mere fact that certain language has been used. by the judge of an appellate court in rendering an opinion is not of itself sufficient to justify the use of the same language by a trial court in its instructions to the jury.” Abernathy v. Emporia Mfg. Co., 122 Va. 406, 95 S. E. 418.

5. “That the court erred in refusing to give defendant’s instruction No. 3.” That instruction is as follows: “You are instructed that, although you find that after witness, Grace Worthington, had left the car and was Ten or fifteen feet away, defendant drew his pistol and pointed it at her, this would not constitute assault with intent to rape.” It will be seen that this instruction called attention to certain specific facts which the testimony tended to prove, and instructed the jury as to the effect of such testimony. This court has held in numerous decisions, some of them quite recent, that it is not error for the trial court to refuse prayers for instructions that are argumentative in form. Markham v. State, 149 Ark. 507; Cranford v. State, 156 Ark. 42; Johnson v. State, 156 Ark. 459; Pratt v. State, 157 Ark. 19; Watkins v. Metropolitan. Life Ins. Co., 158 Ark. 386; Flake v. State, 159 Ark. 37.

6. “That the court erred in refusing to give appellant’s prayers for instructions Nos 4 and 5.” These prayers specifically enumerated the facts which the evidence adduced hy the appellant tended to prove,-.gad concluded hy telling the jury that, if they believed these facts to exist, appellant would not he guilty of the crime charged, and that they should so find. It is unnecessary to set forth these instructions. Suffice it to -say, we have considered them, and they are open to the same objection as prayer No. 3. They are argumentative in form. They single out different phases of the testimony and contain a detailed statement of the facts which the testimony adduced hy the appellant tended to prove, and conclude hy telling the jury that, if they find from the evidence that such were the facts, they should acquit the defendant. Moreover, they are sufficiently covered by other prayers of the appellant for instructions which the court gave. There was therefore'no reversible error in refusing to grant them.

7. The last assignment of error is “that is, the evidence is not sufficient to sustain the verdict.” It could serve no useful purpose to set out in detail and discuss the testimony adduced by the State tending to prove the salacious proclivities of appellant. Under the evidence it was purely an issue of fact for the jury to determine whether appellant was guilty of the crime charged. They believed the testimony of the prosecutrix, and her testimony was amply- sufficient to sustain the verdict. The appellant had a fair trial.

Let the judgment be affirmed.


author: Hart, J.

text:
    State v. Mills.
    Opinion delivered September 24, 1923.
    CRIMINAL law — RIGHT OP APPEAL BY state. — The statutes allowing ■ ’ ah appeal by the State in cases in which the liberty of the .accused is involved, as when the punishment may involve imprisonment, in which case there can be no reversal, do not contemplate an appeal by the State where the court sitting as a jury, after the State’s evidence was in, made a general finding that defendant was not guilty; the appeal being' allowed only to obtain a decision on a point of law important to the correct and uniform administration of the criminal laws.
    Appeal from Phillips Circuit Court; E. D. Robertson, Judge; appeal
    dismissed.

      J. S. Utley, Attorney 'General; John L. Garter, W. T. Hammock and Barden Moose, Assistants, for appellant. ■ , , .

      W. G. Dinning, for appellee.
   Hart, J.

Information was filed by the deputy prosecuting- attorney in the municipal court in the city of Helena charging Willie Mills with the-crime of storing alcoholic liquors, in violation of § 6169 of Crawford & Moses’ Digest.'

The punishment prescribed for violation of the statute is' by fine or imprisonment in the county jail, or by both, in the discretion of the court or jury trying the case. Crawford & Moses’ Digest, § 6183.

The defendant was convicted in the municipal court, and appealed to the circuit court. Theré he was tried' before the circuit court sitting as a jury, and, aftdr hearing the evidence adduced by the State, the court made a g-eneral finding that the defendant was not guilty, and judgment was entered discharging him. The State, by its prosecuting attorney, then prayed an appeal to this court.

The object of the statute allowing the State to appeal in criminal cases is to obtain a decision of the Supreme Court where it is important to the correct and uniform administration of the criminal laws. In cases .where-the punishment prescribed by the statute is by imprisonment, or by- fine and imprisonment, the court cannot direct a verdict of guilty, although it may deem the evidence for the State to be uncontradicted. Roberts v. State, 84 Ark. 564.

In the application of the principle this court has held that the statute does not contemplate an appeal in a case like this, in which the only error alleged is that the court incorrectly decided that the evidence was not sufficient to warrant a submission of the issue to the jury. State v. Smith, 94 Ark. 368, and State v. Spear and Boyce, 123 Ark. 449.

The reason given is that, where the appeal is only taken from the ruling of the trial court that all the.evidence was not sufficient to convict the defendant, the ruling is rather upon the sufficiency of the testimony than upon a question of law.

The State’s appeal is therefore dismissed.

       See Crawford & Moses’ Dig., §§ 3410, 8425


author: Hakt, J.

text:
    Pillow v. State.
    Opinion delivered September 24, 1923.
    1. Intoxicating liquors — possession in store. — In a prosecution for keeping liquor in a store in violation of Crawford & Moses’ Dig., § 6169, evidence held sufficient to support a conviction, though defendant testified that he did not know that the liquor was there until he found it, and that some'one had left it there in his 'absence.
    2. Intoxicating liquors — unlawful possession — punishment.— Under Crawford & Moses’ Dig., § 6183, providing as punishment for keeping intoxicating liquors in a store a fine of not less than $100 nor more than $1,000 and not less than thirty days nor more than ninety days in the county jail, a punishment assessed by the jury of $500 fine and thirty days in jail was not excessive where no extenuating circumstances are shown.

      Appeal from Greene Circuit Court, Second Division; O. E. Keck, Judge;
    affirmed.

      Jeff Bratton, for appellant.

      J. 8. TJttey, Attorney Getneral; John L. Carter, W. T. Hammock and Barden Moose, Assistants, for appellee.
   Hakt, J.

The main reliance of the defendant for a reversal of the judgment of conviction against him is that the evidence is not legally sufficient to support the verdict. The defendant was prosecuted for violating the provisions of § 6169 of Crawford & Moses’ Digest by unlawfully keeping in his store spirituous liquors.

Clarence Cupp was the witness for the State. According to his testimony, the defendant was engaged in operating a store for the sale of general merchandise in Greene County, Arkansas, in the year 1921. In the fall of that year the defendant returned to his store from a bird hunt. After the defendant had been back about twenty minutes, something was said about some liquor. The defendant asked- the witness if he ever drank, and the witness replied that he did sometimes. The defendant said that he might find some liquor. He got up and walked 'behind the counter in his store and brought out a gallon medicine bottle which contained some white whiskey. The prosecuting witness, and others who were present, drank out of the bottle at the invitation of the defendant.

According to the testimony of the defendant and other persons present, the defendant found the liquor upon his return from the bird hunt, and the parties present drank it. The whiskey had been left in the store by some one else during the absence of the defendant. The defendant did not know the whiskey was in the store until he found it. He then took a drink himself, and offered some to the other persons present.

The jury might have legally inferred from the testimony given by the witness for the State that the defendant knew that the whiskey was in his store, and that he went around behind the counter to get it for the purpose of giving those present a drink of it. It is fairly infer-able from the testimony of the State’s witness that the defendant was in possession of and kept the liquor in his store. The jury were the judges of the credibility of the witnesses, and had a right to believe the testimony of the witness for the State and disbelieve the testimony of the witnesses for the defendant. Indeed, it was the duty of the jury to accept such evidence as it believed to be true and reject that which it believed to be false. In the exercise of its province in this regard, it might, under the evidence presented by the record, find the defendant guilty as charged. Therefore we hold that this assignment of error is not well taken.

Again, it is insisted that the punishment is too severe, and should be reduced. The jury returned, a verdict of guilty, and fixed the punishment of the defendant at a fine of $500 and thirty days in jail. The punishment provided by statute for the offense is a fine of not less than $100 and not more than $1,000 for each offense, and not less than thirty days nor more than ninety days in the county jail. Sec. 6183, Crawford & Moses’ Digest. As we have already seen, it was the peculiar province of the jury to judg’e the credibility of the witnesses. In the exercise of its discretion in this regard the jury believed the witness for the State. The testimony for the State did not disclose any extenuating circumstances or facts which might require the jury to have fixed a lower pun-isliment in the ease. Hence we hold that this assignment of error is not well taken.

It is also insisted that the judgment should be reversed because the court permitted the prosecuting attorney to ask the brother of the defendant, who was a witness in his behalf, to state whether or not he had been charged with selling liquor and the case was dismissed.

The witness answered yes before the defendant’s attorney objected'to the question. It was then within the discretion of the court to allow the question and •answer to stand and we hold that this assignment of error is not well taken. ■


text:
    Jackson v. State.
    Opinion delivered September 24, 1923.
    1. Intoxicating liquors — making mash kit for distillation— indictment. — Under Acts 1921, No. 324, § 1, providing that no mash, wort or wash fit for distillation shall be made by any person other than a person duly authorized under the laws of the United States, etc., the omission of the word “duly” in an indictment does not render the indictment defective.
    2. Intoxicating liquors — making mash fit for distillation— indictment. — An indictment for making mash fit for distillation is not fatally defective which, intending to describe defendant as not being “authorized under the laws of the United States to manufacture sweet cider, vinegar, non-alcoholic beverages or spirits for other than beverage purposes,” omits the word “beverages” after “non-alcoholic,” the omission being a mere clerical error.
    3. Intoxicating liquors — conflicting statutes. — Acts 1921, No. 324, making it unlawful to make or ferment mash, wort or wash fit for distillation, is not invalid as not in harmony with the 18th Amendment to the Constitution of the United States.
    4. Intoxicating liquors — making mash — evidence.—Evidence held to sustain conviction of making mash for the purpose of distilling it into spirituous liquors.
    Appeal from 'Sebastian Circuit Court, Fort Smith District; Jno. E. Tatum, Judge;
    affirmed.

      T. 8. Osborne, for appellant.-

      J. 8. Utley, Attorney G-eneral, Jolm L. Carter, W. T. Hammoclc and Barden Moose, Assistants, for appellee
   Hart, J.

Alonzo Jackson prosecutes this appeal from a judgment of conviction against him for the crime of unlawfully making mash, in violation of the statute.

The first assignment of error questions the sufficiency of the indictment. The defect complained of is in the following:

“The defendant, Alonzo Jackson, in the county, district and State aforesaid, on the 2d day of February, 1923, unlawfully, wilfully and feloniously did make mask, wort and wash fit for the distillation and the manufacture of alcoholic liquor, the said Alonzo Jackson not being a person authorized under the laws of the United States to manufacture sweet eider, vinegar, non-alcoholic or spirits for other than beverage purposes, against the peace and dignity of the State of Arkansas.”

It is first insisted that, inasmuch as the statute uses the words “a person duly authorized under the laws of the United States,” that the omission of the word “duly” in the indictment renders it defective. We do not think so. The words “duly authorized” as used in the statute can mean nothing more than authorized according to the statute. Hence the omission of the word “duly” takes nothing away from the meaning of the .statute.

The omission of the word “beverages” from the indictment is merely a clerical error. Its omission could not mislead a person of common understanding, and does not vitiate the indictment. The rule prescribed by our statute is that no indictment is insufficient which does not tend to the prejudice of the substantial rights of the defendant on the merits. Walker v. State, 50 Ark. 532, and Rinehart v. State, ante, p. 129.

Another ground for the reversal of the judgment is that the statute in question is invalid because it is not in harmony with the 18th Amendment of the Constitution of the United States. On this point it would be sufficient to say that the act in question has been held valid by this court in Logan v. State, 150 Ark. 486. In addition it may be said that this holding is in accord with the decision of the Supreme Court of the United States in U. S. v. Lanza, 260 U. S. 377.

With regard to the question in the opinion, among other things, Chief Justice Taut said: “We have here two sovereignties, deriving power from different sources, capable of dealing with, the same subject-matter within the same territory. Each may, without interference by the other, enact laws to secure prohibition, with the limitation that no legislation can give validity to acts prohibited by the amendment. Each government, in deter-miikhg'jwhat shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the otliet.,''"

' The. main reliance for a reversal of the judgment is that the evidence is not sufficient to support the verdict. In. this connection it may be said that the court told the jury that'the words “mash, wort and wash fit for distillation” mean intended for distillation of spirituous liquors. This instruction is in accordance with the holding of the court in Logan v. State, supra.

In this view of the law, counsel for the defendant insists that the evidence is not legally sufficient to support the verdict.

The principal witness for the - State was, the sheriff who arrested the defendant. He obtained a search warrant and, with a deputy, searched the defendant’s premises in Port Smith, Sebastian County, Arkansas. The defendant operated a café containing confections and a drinking fountain, 'and connected with the rear of this was a room for pressing clothes, and on the right of it a barber shop, with a sleeping-room in the rear of it. There was also in the rear a wash or cleaning room which was cut off from the other rooms, by a partition. The wash-room contained a cleaning table covered with tin or zinc, and under it was a large barrel, buried in the ground, nearly full of water, which had drained into it from the cleaning table. In an adjoining room there were two old barrels buried like the one in the wash-room. They had rotten chops in them which had begun to work. The barrels had cotton seed packed around them and some old automobile fixtures on top of them. The sheriff was of the opinion that whiskey could be manufactured out of the chops. The defendant, when arrested, told Mm .that he had made some ‘ ‘ chock. ’ ’ A part of the contents of the two barrels containing the rotten chops was examined by a chemist, and he testified that the chops •contained 6.82 per cent, of alcohol by volume.

It is true that this evidence was contradicted by the testimony of the defendant and his witnesses, but we think that the State’s evidence was sufficient to warrant the jury in finding the defendant guilty. According to the testimony of the sheriff, the chops in the two barrels were fit for manufacturing whiskey. It was found concealed in two old barrels on the defendant’s premises. The chemist who examined the chops testified that they contained 6.82 per cent, alcohol. The defendant admitted that he had made some “chock.” Hence the jury might have fairly and legally inferred that the defendant made the mash for the purpose of distilling it into spirituous liquors.

We find no reversible error in the record, and the judgment will be affirmed.


author: Smith, J. Smith, J.,

text:
    Burt v. State.
    Opinion delivered September 24, 1923.
    1. Continuance — discretion of court. — As the granting or refusing of a continuance rests largely in the discretion of the trial court, a -judgment will not he reversed on account of the refusal to grant a continuance unless there has heen an abuse of this discretion.
    2. Continuance — absent witness. — A continuance for the absence of a material witness was properly refused upon a mere showing that the witness “is unable to attend court on account of illness,” without showing the nature or probable duration of the illness or that the witness would not be able to attend court later in the term.
    8. Continuance — absent witness — showing of diligence. — It was error to refuse a continuance for the absence of a material witness on account of sickness where due diligence was shown in process for the witness and it .affirmatively is shown that the witness will not be able to attend court during- the term; and the right to a continuance is not defeated by an offer to admit the recitals of the motion for a continuance as a deposition of the absent witness without admitting the truthfulness thereof.
    Appeal from Conway Circuit Court; J. T. Bullock, Judge;
    affirmed.

      Gordon & Combs, for appellant.

      J. S. Utley, Attorney General, and John L.-Carter, Assistant, for appellee.
   Smith, J.

Appellant was charged with incest, and his trial resulted in a conviction, and for the reversal of the judgment the only error insisted upon is that the court erred in refusing to grant a continuance for the term on account of the .absence of a witness, Mrs. May Bradford. ■

The motion for continuance recited that this witness was present when the alleged offense was committed, and that she could see and did see the defendant at the time of the alleged commission of the offense, and knew that he did not commit the crime charged. The motion recited that this witness had 'been subpoenaed, but was unable to attend court on account of illness, and that defendant could ‘ and would have had her in attendance at the next term of court. The court overruled the motion for a continuance, but permitted the defendant to read the motion as a deposition of the witness, and defendant excepted.

We have many times held that the matter of granting or refusing continuances rested largely in the discretion of the trial court, and that a judgment would not be reversed on account of the refusal to grant a continuance unless there had been an abuse of this discretion.

In this case the court convened on the first Monday in March, which was March 5th. Appellant had been indicted at the previous October term of the court, and had been arrested January 6,1923, at which time he gave bond. Defendant had therefore had ample time to prepare for trial, and to know the location and condition of his witnesses. The motion for continuance was sworn to on March 9 by the defendant and filed in open court on March 10, when the ease was called for trial. This was during the first week of the term. There was no statement as to the nature or character of the illness of the witness, the motion being silent as to the beginning or probable duration of the illness, and there was no showing that the witness might not have been able, later in the term, to attend court, the only showing on the subject 'being the statement in the motion “that said witness is unable to attend court on account of illness.”

There was no explanation of the absence or more definite information concerning the illness of the witness, nor was there any request, that time or opportunity be given to make a more definite showing. Under these circumstances we are unwilling to say that the court abused its discretion in refusing to continue the case for the term. Clark v. State, 155 Ark. 16; Barling v. State, 143 Ark. 164.

No error appearing, the judgment is affirmed.

Smith, J.,

(on rehearing). A petition for rehearing has beep filed, in which our attention is called to the amended record brought up by certiorari. The original brief of appellant was filed on July 23, and the motion for continuance was copied in full therein, but there was .no showing as to the proceedings relating thereto, except that it was overruled. The brief of the State was filed on August 7, and it was there insisted that a proper showing to obtain a continuance had not been made. .

Thereafter appellant suggested a diminution of the record, and a writ of certiorari was issued by the clerk of this court on September 1, 1923, and the return thereon by the clerk of the court below was filed on September 4. This return contains the judgment of the court overruling the motion for a continuance, and in' this judgment it is recited that an attachment issued for the absent witness and was duly served, and that the court appointed a reputable physician to examine the witness, and that the physician made the examination and reported that the witness would b.e unable to attend court for a period of ten days, but would then be able to attend.

The judgment .brought up on certiorari further recites that “comes the prosecuting attorney, Sam Rorex, and states to the court that he will admit that the testimony of said witness would be as alleged, and, upon said agreement being entered by the prosecuting attorney, over the objection of the defendant, the court doth overrule said motion for a continuance, and orders that said cause be tried, to which ruling and judgment of the court the defendant at the time objected and saved his exceptions.”

Our attention was not called to this record, and it was not therefore considered by us on the original submission, and we accepted the view of the Attorney G-eneral that a proper showing to obtain a continuance had not been made.

It now appears that appellant did use diligence to obtain the attendance of the absent witness and did make the showing which we said in the original opinion should have been made. The continuance should therefore have been granted.

' Counsel for appellant says that the ruling of the court below to which appellant excepted was made upon the assumption that appellant was entitled only to have the testimony admitted as a deposition without any admission of the truth of the testimony. If this is true, the court was in error, for, if appellant’s showing entitled him to have the witness present, that right could be denied him only by admitting the truthfulness of the testimony; and that was not done.

The materiality of the testimony is not questioned, and, as there was a showing of diligence and that the attendance of the witness could be procured, the continuance should have been granted, and the right thereto was not defeated by the offer to admit the recitals of the motion for a continuance as a deposition of the absent witness without admitting the truthfulness thereof. Price v. State, 71 Ark. 180; Graham v. State, 50 Ark. 161; Jones v. State, 99 Ark. 394.

The judgment of affirmance is therefore set aside, and for the error in refusing the continuance the judgment is reversed and the cause remanded for a new trial.


author: Smith, J.

text:
    Tucker Lake Reclamation District v. Winfrey.
    Opinion delivered September 24, 1923.
    1. Levees and drains — basis op assessment. — On hearing of protests against the amount of assessments for levee and drainage purposes, the court remarked: “I am satisfied from what proof I have heard that this project ought to be put there, and I think it should go through unless it amounts to practically confiscating a man’s land. That is a different proposition. I want to hear proof on that.” Held not to show that his finding that certain assessments were too high was based on an erroneous basis, namely, the ability of the owners to pay the taxes from rents and profits derived from the land, instead of the enhanced value of the lands which would result from the proposed improvement.
    2. Levees and drains — conclusiveness of court’s finding as to assessments. — The rule that the court will not disturb the find- ' ing of the trial court or jury in an action at law unless found to be unsupported by substantial testimony applies in the case of a finding as to the amount of benefits to accrue from a proposed drainage district.
    3. Trial — general and special finding. — A general finding that a body of lands will, as a whole, be enhanced in value $12,000, by a proposed improvement will be controlled by special findings as to the value of each separate tract, totaling $11,026.63,
    Appeal from Jefferson Circuit Court, W. B. Sorrels, Judge;
    affirmed.

      Mike Danaher and Palmer Danaher, for appellant.

      Crawford & Hooker, for appellees.
    This appeal is from the findings of fact made by the trial court, sitting as a jury. Such findings are con-elusive, on appeal. 90 Ark. 512; 91 Ark. 108; 92 Ark. 41; .90 Ark. 494; Id. 375; Id. 372; 100 Ark. 166; 86 Ark. 504; 80 Ark. 57; 82 Ark. 188;-250 S. W. (Ark.) 33.; 84 Ark. 626; 97 Ark. 374; 80 Ark. 240; 96 Ark. 606; 82 Ark. 260;. 86 Ark. 259; 126 Ark. 219; Id. 318; Id. 587; 98 Ark. 367; 114 Ark. 170; 107 Ark. 281; 125 Ark. 136.
   Smith, J.

Appellant is an improvement district formed under the general statutes of the State under the orders and judgment of the county court of Jefferson County. After the- assessment of the benefits accruing to the lands of the district was made, appellees, who are owners of land lying within the-district, filed a protest against their .assessments. The county court heard the protests and overruled them, and entered an order confirming the assessments, and from this order, appellees appealed to the circuit court.

The hearing in the circuit court was de novo,- as required by the statute, and at the conclusion thereof the court entered an order reducing the; assessments, and this appeal is from that judgment.

During the hearing* before the circuit judge-, that official made the following observation: “I am satisfied, from what proof I have heard, that this project ought to be. put there, and I think it should go through, unless it amounts to practically confiscating* a man’s land; that is a different proposition. I want to hear proof on'that.” It is now insisted that this remark of the judge showed that his finding was based upon an erroneous basis, in that his finding was not controlled by a consideration of the betterments to the lands or the enhanced value to result from the improvement, but was based upon a con-' sideration of the ability of the owners to pay the tax from .rents and profits derived from the land.

This would, of course, be an improper basis upon which, to assess betterments for a proposed improvement district..of any character. To adopt that basis would prevent the assessment of benefits against undeveloped and non-income producing lands. The thing to he considered is the enhanced value which it is anticipated, will result from the proposed improvement. But the law of the subject has been defined in many oases, and need not he reviewed here. We think, however, that the remarks of the court and the record in its entirety do not support the contention of appellant that the court considered the income-producing quality of the land and the ability of the owner to pay, rather than the enhanced value of the lands which would result from the construction of the proposed improvement.

The court found the fact to he that the lands would be greatly benefited by the proposed improvement; but the court also found that the assessed benefits were excessive, and that the lands would not be benefited to the extent of the assessments made, and, upon this finding, reduced the assessments.

We have carefully reviewed the conflicting testimony in this case, and are constrained 'to say that the preponderance of the testimony appears tó establish the fact that the betterments assessed by the commissioners and approved by the county court are not - excessive; •but this testimony is by no means undisputed, and we are unable to say that the testimony is not legally sufficient to support the findings of the court below.

This is ail appeal from a trial at law, and involves a finding of fact made by a circuit court, and in such case it is our duty to give to the testimony tending to support that finding its highest probative value.

The case of Gibson v. Lawrence County, 155 Ark. 319, involved the assessment of certain lands for general taxation purposes, and in affirming the findings of the circuit court we there said: “The sole question which concerns us is,'whether or not there is legally sufficient testimony to support the'finding of the circuit court, for the settled rule is that the court will not disturb the finding of the trial 'court or jurv based upon disputed issues of fact, unless found to be unsupported by substantial testimony. That rules prevails in all cases at law, and a case like this, involving the correctness of valuations for taxation purposes, is no exception to the general rule. St. L. & S. F. R. Co. v. Fort Smith & Van Buren Bridge Dist., 113 Ark. 492.”

There is conflicting testimony as to the quantity of appellees’ lands which were subject to overflow, and also as to the extent and duration of the overflow. The undisputed testimony shows that appellees’ lands would all be benefited by the proposed improvement, although one witness expressed the opinion that the obstruction of drainage would about offset the value of the protection from the overflow which the levee would afford. The court found that the land would be benefited, and rendered judgment accordingly, and the only question for us to determine is whether there is any substantial testimony to justify an assessment as small as that made, and this question we must answer in the affirmative. There was substantial testimony placing the betterments at an even smaller amount than that found by the court, and, this being true, it becomes our duty to affirm the judgment, notwithstanding any opinion we may have as to what the preponderance of the testimony shows, and no useful purpose would be served in setting out the conflicting views of witnesses who testified on the subject and expressed their opinions as to the betterments to be derived from the' proposed improvement.

It is insisted that in any event the betterments of appellee Cady should be raised from $11,026.63 to $12,000; and the basis of this contention is that the court found that these lands would be enhanced in value to the extent of $12,000. It was the view of the court that the farm, considered as a whole, would be enhanced in value to the extent of $12,000. But this was not the manner in which the law required the betterments to be assessed. The requirement of the law is that each tract shall be separately assessed. Section 6824, C. & M. Digest. This was done, and the court set opposite each tract the enhanced value thereof, and the total of the betterments thus found and assessed amounted to $11,026.63, and the judgment of the court was in accordance with this finding. This latter finding, made in accordance with the requirements of the statute, must he accepted ¡as in the nature of a correction of a more general finding that the betterments to the whole body of land were $12,000.

The judgment of the court below must he. affirmed, and it is so ordered.


text:
    Lacour v. Hope.
    Opinion delivered September 24, 1923.
    1. Criminal -law — appeal prom mayor — punishment.—Though a prosecution for allowing whiskey to he stored in a garage was instituted before a mayor, yet where it was based on Crawford & Moses’ Dig., § 7734, and not on a city ordinance, judgment of conviction committing defendant to the city, instead of the county, jail was erroneous.
    2. Criminal law — newly discovered evidence — diligence.—A new trial for newly discovered evidence was properly denied where there was no showing as to why it was not produced at the trial.
    3. Criminal law — newly discovered evidence — immaterialty.— Under Crawford & Moses’ Dig., § 6169, forbidding the storage of liquors in a public garage, it is no part of the offense that they he kept in a locked receptacle; and, though there was evidence that the locker was locked and that defendant had the key, newly discovered evidence that it was unlocked was immaterial.
    4. Criminal law — refusal of instruction already covered.— Refusal of an instruction submitting an issue covered by instructions given was not error.
    Appeal from Hempstead Circuit Court; J. H. McCollum, Judge;
    affirmed with modification.

      Sarah Shields Jobe, for appellant.
   Smith, J.

Appellant was convicted on a charge of allowing whiskey to be stored in h.is garage in the city of. Hope. He was arrested on a warrant which was issued by the mayor of that city, and at Ms trial before that officer was fined'$100. He appealed to the circuit .court, and, upon the trial there, was found guilty and his punishment fixed at “$100 fine and 30 days in jail,” and the judgment pronounced thereon required this jail sentence to be served in the jail of the city of Hope.

It does not appear that, the city had an ordinance on the subject, and the prosecution was admittedly had under the authority of § 6169, C. & M. Digest.

The proof on the part of the prosecution was to the effect that a deputy sheriff and a policeman searched appellant’s garage under the authority of a search warrant. When the officers entered the garage they found appellant there and at work, and, after searching the premises without finding any intoxicating liquor, they came to a locker, which was locked, and appellant took a key from his pocket and unlocked the locker, and the officers found in it a quart jar about half full of liquor* and some other jars that smelled of liquor. Appellant testified that the locker in which the liquor was found was made of pieces of plank 1 x 12, and had shelves on wMch automobile parts and tools were placed, and was used by him and other mechanics working* there, and that it was not -locked when the officers made the search, and that he had just returned from his lunch before the officers made the- search, and that the liquor was not his, and that he knew nothing of its presence in the locker.

In support of the motion for -a new trial appellant offered -affidavits showing the newly-discovered evidence of two witnesses to the effect that theykwere in the garage when it was searched; that appellant was working on a car near the front door, and that the locker was not locked, and appellant was not called upon to unlock it, and did not do -so. Appellant also asked an instruction which the court refused to give, and this refusal is assigned as error.

Tfhe judgment in this case was erroneous in so far ag.it required, the jail sentence to be -served in the. city jail. In the case of Pocahontas v. State, use of Randolph County, 114 Ark. 448, we held that a city or town is entitled to retain all the fines and .penalties imposed by the mayor’s court for violation of its 'ordinances, notwithstanding the ordinances make the same acts offenses as are made offenses against thé State by the statutes, but that the county was entitled .to such fines and penalties as are imposed by the mayors of such' cities acting in their capacity of justice off the peace, for violation of the State laws within their jurisdiction.

Here the mayor was acting as an ex-officio justice of the peace in enforcing a statute of the State, and in such oases it is provided by § 7734, C. & M. Digest, that every defendant found guilty on appeal to the circuit court from judgment of conviction in a police court and “committed to imprisonment, either as a part of bis punishment or in default of the payment of fine or costs, shall be committed to the county jail in the same manner as if committed by a justice of the peace * * *.” The judgment of the court below must therefore be modified to conform to this statute.

The showing of newly-discovered evidence did not entitle appellant to a new trial. In the first place, there was no showing why this testimony was not produced at the trial; and, in the second.place, the testimony was immaterial. The liquor was found in-the locker, and the newly-discovered evidence tended to show that the locker was unlocked. But that circumstance was unimportant. As has been said, the prosecution was for a violation of § 6169, C. & M. Digest, and by 'this section it is made unlawful for any person to store, keep, possess, or have in possession, or to permit -.another to store, keep, possess, or have in possession, any intoxicating liquors in a public garage, and certain other designated places; and it is no part of the offense that the liquors shall have been kept in a locked •receptacle of any kind. If in fact appellant stored or permitted another to . store liquors in a public garage, it was immaterial that the place where it was stored was an unlocked receptacle.

The court charged the jury.that the fact, if it was a faett, that officers found liquor in a garage was not enough, standing by itself, to authorize a conviction, hut that the proof must show, beyond a reasonable doubt, that appellant placed it there, or that he knew it was there and allowed it to remain. This instruction properly submitted to the jury the only important question of fact in the case, that is, whether appellant had placed the liquor in the garage, or, knowing it was there, had allowed it to remain; and, this being true, there was no prejudicial error in refusing to give the instruction requested by appellant and which submitted the same issue.

The only error in the case can be cured by amending the judgment to read that appellant shall serve Ms jail sentence in the county jail, and the judgment will be thus amended, and, as amended, it is affirmed.


author: Humpheeys, J.

text:
    Firemen’s Insurance Company of Newark v. Rye.
    Opinion delivered September 24, 1923.
    1. Appeal and error — conclusveness of verdict. — A verdict supported by any substantial evidence will be sustained on appeal.
    2. Insurance — proof of loss — waiver.—In an action on a fire policy covering an automobile, the requirement of proof of loss was waived where insurer, within the period wherein proof of loss was to be made, entered into negotiations with insured for a settlement through its agent and adjuster, both of whom led her to believe a settlement would be made.
    3. Insurance — prohibition of use of automobile for commercial delivery. — Where a policy insuring an automobile against fire stipulated that it should be used for private pleasures and business calls, “excluding commercial delivery,” the prohibition was against the habitual use of the car for commercial deliveries, and not against the occasional use by the owner, who is a florist, in delivering flowers.
    Appeal from Sebastian Circuit Court, Fort Smith District; John Briggolara, Judge;

    affirmed.

      J. A. Watkins, for appellant.

      1. The record shows that the assured failed to furnish proof of loss within 60 days, as required by the insurance contract. This failure avoided the policy. 88 Ark. 120; 87 Ark. 171; 84 Ark. 224.'
    2. There was a breach of the warranty against use of the car for commercial deliveries. This was a promissory warranty, binding on the assured. 57 Ark. 279; 58 Ark. 277; 69 Ark. 295; 66 Ark. 346; 85 Ark. 579; 91 Ark. 310; 83 Ark. 126.

      Warner, Hardin & Warner, for appellee.
    1. There is no merit in the contention that the verdict was excessive. There was substantial evidence on which to base their finding of the amount. 152 Ark. 597, 607; 145 Ark. 269.
    2. Proof of loss was mailed within 60 days. There was substantial compliance with the requirements of the policy. C. & M. Dig., § 6148; 47 Ark. 519; 61 Am. St. Rep. 105; 18 L. R. A,, N. S., 106. Proof of loss was waived by entering into negotiations with the insured within 60 days. 152 Ark. 79, 82; 151 Ark. 561.
    3. There was no breach of the warranty. The warranty did not prohibit a mere casual or incidental use. Funk & Wagnalls’ New Stand. Diet.; 67 Ark. 553; 142 Ark.- 240, 242; 61 Ark. 108; 86 Ark. 538; 144 Ark. 271, 277; 85 S. E. 37; 167 S. W. 1095; 26 Corpus Juris, 205, § 249; 80 Ark. 184.
   Humpheeys, J.

' This is an appeal from a judgment for $900, 12 per cent, penalty and $120 attorney fees, rendered in the circuit court, Font Smith District of Sebastian County, in favor of appellee against appellant upon an insurance policy insuring appellee’s Gardner touring car to the amount of $1,100 against loss by fire.

The policy provided for proofs of loss within sixty days after loss or damage by fire, and that a failure of appellee to furnish appellant such proofs would avoid the policy.

The policy also contained a warranty clause by the assured to the effect that “the uses to which .the automobile described is and 'will be put are private pleasure uses and business calls, excluding commercial delivery.”

An alleged violation of the aforesaid provisions in the policy was interposed as a defense to the suit for loss of the car by fire.

Appellant contends for a reversal of the judgment upon three grounds.

The first ground is that the judgment was for an amount in excess of the evidence. Thé witnesses differed as to the value of the car. Four second-hand dealers placed different values upon the car, ranging from fifty per cent, of its original cost up to $800. The original cost was $1,300. E. H. Bruce, a dealer in Gardner touring cars, who was acquainted with the condition of the ear, testified that its market value was $1,000 on the day of the fire. The car was only ten months old, and had been kept in a garage when not in use. Where a verdict is supported by any substantial evidence, it will be sustained on appeal,' as the weight of the evidence and credibility of the witnesses are questions .for determination by the jury and not by the court. Covill v. Gershmay, 145 Ark. 269; Guardian Life Ins. Co. v. Dixon, 152 Ark. 597.

The second ground is the alleged failure of appellee to furnish appellant with proof of. loss until after the expiration of sixty days from the date of the fire: The oaf was destroyed by fire on February 18, 1922, and ■proof of'loss was mailed to appellant on April 19, 1922^ and'actually received by it on April 24, 1922. It is unnecessary to discuss or decide whether the notice given was a substantial compliance with the terms of the policy requiring proof of loss, as there was substantial testimony tending to .show that, within the sixty-dáy period, appellant entered into negotiations with appellee for a settlement .through its agent and adjuster, 'both of whom led her to believe a settlement would be made. By this act appellant waived tibe requirement of proof of loss. Springfield Fire & Marine Ins. Co. v. State, 152 Ark. 79.

Tie third g-ronnd is that the warranty against using the oar for commercial deliveries ivas breached/thereby barring .recovery.. Appellee’s husband was a florist, and conducted a flower shop in Fort Smith. At the tipie the car caught on fixe it was being used in delivering a package of flowers to a customer, and was being driven by an employee of her husband. The testimony tended to show that the car was used occasionally but not regularly in delivering flowers; that most of them were' delivered by. a boy on a bicycle or by Western Union messengers, or, when necessary, in a car .hired for the purpose. The inhibition against “commercial deliveries” used in the warranty clause does not mean temporary or incidental use. The prohibition was against the habitual use thereof for commercial deliveries. Crowell v. Ins. Co. (N. C.), 85 S. E. 37; Commercial Assurance Co. v. Hill (Tex.), 167 S. W. 195; 19 Cyc. 736; 26 C. J. § 249, p. 205.

The appellant did not abstract the instructions of the court to the jury, so it must be presumed that the issues joined and determined were submitted to the jury under correct declarations of the law.

No error appearing, the judgment is affirmed.


author: Htjmpheeys., J.

text:
    Travis v. State.
    Opinion delivered September 24, 1923.
    1. Homicide — instructions as to insanity. — Where, in a prosecution for murder, the defense of insanity was interposed, instructions of the court, in effect, that, before defendant could be excused on ' the ground of insanity, it would ' be necessary to find, not only that she was in such a condition when the deed was committed as not to know the consequences of the act, but also that she did not know right from wrong, field erroneous as ignoring the legal test, to-wit, that if she knew the', nature and quality of her act, and that it was wrong, but was '-under such duress of mental disease as to be incapable of ¿hóosing . between right and wrong, she should be acquitted.-• . -

      2. CRIMINAL LAW — INSTRUCTIONS—HARMLESS ERROR. — The giving of a correct instruction on the subject of insanity will not cure the error of giving contradictory and irreconcilable instructions on the same subject.
    Appeal from Independence Circuit Court; Dene II. Coleman, Judge;
    reversed.

      Earl C. Casey and Samuel M. Casey, for appellant.

      J. S. Utley, Attorney G-eneral, John L. Carter and W. T. Hammock and Darden Moose, Assistants, for appellee.
   Htjmpheeys., J.

Appellant was indicted for murder in the first degree in the circuit court of Independence •County for killing an infant in the arms of its mother ■at whom she was shooting. Appellant admitted the killing, but sought to excuse the act on the ground of insanity. On the trial of the cause she was convicted of murder in the second degree, and adjudged to serve a term of fifteen years in the State Penitentiary as punishment therefor. Prom .the judgment of conviction an appeal has been duly prosecuted to this court.

At the conclusion of the testimony the court gave four instructions to the jury, Nos. 13, 14, 15 and 17, purporting to define the legal tests of insanity, one of which must 'exist, in order to excuse the act of appellant. Nos. 13 and 14 were given at the instance of the State, over the separate objections of appellant,' each embracing only two legal tests, either of which existing, might excuse the act of -appellant. No. 15, also given at the instance of the State, contained two tests joined by the conjunction “and,5'’ telling the jury, in effect, that, before appellant' could be excused, it would be necessary for them to find not only that she was in .such a condition at the time the deed was committed as not to’ know the consequences of the act, but also that she did not know right from wrong. Each of the instructions given at the instance of the State ignored the legal test to the effect that if appellant “knew the nature and quality of her act, and that it was wrong, but was-under such duress of mental disease as to be incapable of choosing between right and wrong as to the act done, and unable, because of the disease, to resist the doing of the wrong act, which was the result solely of her mental disease,” she should be acquitted. On account of this omission in each of the instructions, and the use of the conjunction “and” in instruction 15, the instructions were inherently wrong. Bell v. State, 120 Ark. 530. The State insists, however, that the' defect contained in each of the instructions, given at the instance of the State, was cured by giving instruction No. 17, requested by appellant, which conformed in every respect to the legal tests of excusable insanity defined by Bell v. State, supra. Instruction No. 17, requested by appellant, was an independent instruction, and, being correct, had the effect of calling rhe court’s attention to the defect in each of the instructions given at the instance of the State, and was tantamount to a specific objection on the part of appellant to the defective instructions. Instruction No. 17 cannot be reconciled with the instructions given at the instance of the State. There is a contradiction between them as to what constitutes insanity which will relieve one from responsibility for his acts. This court said in the case if Bolling v. State, 54 Ark. 602, that “it can make no difference that the other instruction correctly states the rule, for the two are contradictory and irreconcilable, and we have no means to determine which the jury accepted as its guide. ’ ’

On account of the error indicated the judgment is reversed, and the cause remanded for a new trial.


author: Humphreys, J.

text:
    Holmes v. State.
    Opinion delivered September 24, 1923.
    1. Indictment and information — term of court. — Though accused had been bound over by a magistrate on a felony charge to a subsequent term of court, this did not prevent the grand jury, at a prior term, from indicting him, as Crawford & Moses’ Pig., § 2941, providing that the commitment of any defendant shall show the day of the term on which he must appear, simply • means that he must appear at that time, unless sooner indicted and required to appear by a higher tribunal.
    2. Indictment and information — disqualification of grand .juror. — Under Crawford & Moses’ Dig., § 3030, no indictment can be quashed because a grand juror failed to possess the qualifications required by law.
    3. Indictment and information — joinder of offenses — election. ■' — An indictment is not demurrable for misjoinder of offenses where, .in response to a motion to elect, the State elected which offense should be tried.
    4. . Intoxicating liquors — manufacture—instruction.—Where an indictment charged defendant with the manufacture of intoxicating liquors, it was not error to instruct that defendant would '•be guilty if he manufactured or was interested in the manu- ■ facture of - such liquors.
    5. Criminal law — reasonable doubt — instruction.—Where, in a • prosecution for manufacturing intoxicating liquors, the court charged that by a reasonable dohbt was not meant a mere ■ “positive” or imaginary doubt, a reversal was not required; 'it' being apparent that the word “possible”' was intended.
    6. •• Intoxicating liquors — instruction as to intoxicating nature.- •• — In 'a prosecution for manufacturing intoxicating liquor, an instruction that defendant would be guilty if he manufactured . .liqupr .that contained such a percentage of alcohol as to be intoxicating, was supported by evidence tending to show that the liquor contained 4% per cent, of alcohol.
    7. Criminal law — repetition of instructions. — It is not error to refuse requested instructions where their substance is covered by instructions given.
    8. Criminal law — error not preserved in trial court. — On appeal from a conviction for manufacturing intoxicating liquors, no reversal will be ordered on the ground that evidence was secured .against defendant by an illegal search of his premises, where objection on that ground was not made in the trial court.
    9. Intoxicating liquors — evidence of manufacture. — Evidence held to support a conviction for manufacturing 'intoxicating liquor.

      Appeal from G-arland Circuit Court; Earl Witt, Judge;
    affirmed.

      O. H. Sumpter, Randolph & .Cobb and C. T. Cotham, for appellant.

      J. S. Utley, Attorney G-eneral, John L. Carter, Wm. T. Hammock and Darden Moose, Assistants, for appellee.
   Humphreys, J.

Appellant was indicted, tried and convicted in the Garland Circuit Court of the crime of manufacturing intoxicating liquors, and," as a punishment therefor, was adjudged to serve a term of one year in the State Penitentiary. From the judgment óf con"viction he has duly prosecuted an appeal to this court;

Appellant’s first contention for a reversal of the judgment is that the grand jury in session on January 22, 1923, which indicted him, was without' jurisdiction to return the indictment because he had been bound over upon the same charge by a magistrate, and had given bond to await the action of the Garland Comity Circuit Court at the March, 1923, term thóreofi It is provided by § 2892 of Crawford & Moses’ Digest- that “the grand jury has power, -and it is their duty, to inquire into all public offenses committed in the jurisdiction of the court in which they are impaneled, ánd to indict such persons as they find guilty thereof.” The mere fact that the defendant had been bound over to await the action of the grand jury at any particular term of the circuit court could not preclude said court then in -session, or at any intervening session, from "investigating the charge against him through its inquisitorial arm. It is true that § 2941 of Crawford & Moses’ "Digest provides that the “commitment of any defendant * * * as herein provided shall show the day of the term of court on Which the defendant shall appear,” but this simply means that he must appear then, if not -sooner indicted and required to appear by a higher tribunal.

Appellant next contends for the invalidity of the indictment on the ground that C. H. Russell, á member of the grand jury that indicted him, was -disqualified because lie bad filed an affidavit before the 'circuit judge for a search warrant charging him with the offense set out in the indictment, and had appeared as a witness before the magistrate who bound him over and the grand jury that indicted him. It is against the policy of the law in this State to avoid an indictment on account of the disqualification of those who sit on the grand jury. Sec. 3030, Crawford & Moses’ Digest; Tillman v. State, 121 Arln 322; St. Clair v. State, ante, p. 170.

Appellant next contends for a reversal of the judgment upon the ground that two offenses were charged in the indictment. Except in certain instances the joinder of separate offenses in the indictment is forbidden in this State. Chronister v. State, 140 Ark. 40. In the instant case a motion to elect was filed, and the State did elect. The demurrer to the indictment upon the ground that there was a joinder of offenses was therefore properly overruled.

Appellant next contends for a reversal of the judgment because the State elected to stand'upon the charge of manufacturing intoxicating liquors, and thereafter requested and obtained an instruction that he would be guilty if he manufactured or was interested, directly or indirectly, in the manufacture of intoxicating liquors. The indictment charged appellant with the manufacture and being interested, directly or indirectly, in the manufacture of intoxicating liquors. Under the statute they are different phases of the same transaction and may be charged conjunctively as one offense. Sec. 6160, Crawford & Moses’ Digest; Coco v. State, 149 Ark. 387. The election of the State therefore to stand upon the manufacture of intoxicating liquors necessarily included being interested in the manufacture thereof, hence the instruction was not broader than the charge.

Appellant next contends for a reversal of the judgment because the word “positive” appears in the instruction defining a reasonable doubt. The clause in which the word appeared is as follows: “and by a reasonable doubt it is not meant a mere positive or imaginary doubt.” It is apparent that the word “possible” was intended, and that the use of the word “positive” was a clerical error. Tlie word intended is so patent that no prejudicial error could have resulted on account of the inadvertent use of the wrong word. A specific objection should have been made by appellant to the use of the word “positive”, in the instruction. Had such an objection been made the court would have readily corrected the error.

Appellant next contends for a reversal of the judgment upon the ground that instruction No. 6, given by the court, when read in connection with the' other instructions, was calculated to confuse the jury. We think not. It was in the nature of a caution to the jury not to convict appellant upon circumstantial evidence if the circumstances relied upon by the State could be explained upon any reasonable theory consistent with his innocence. The instruction was favorable to appellant, and the substance thereof was approved by this court in Lowery v. State, 135 Ark. 163.

Appellant next contends for a reversal of the judgment upon the ground that the court erred in giving instruction No. 7. The instruction is as follows: “As to the alcoholic liquor which the defendant is charged with manufacturing, if you believe that he manufactured liquor there that contained such a percentage of alcohol as to be intoxicating when drank, thén he. would be guilty of manufacturing intoxicating liquor, under the indictment.” The insistence is made that there was no evidence tending to show that the home brew was intoxicating. In this appellant is mistaken. The evidence tended to show that the home brew contained four and óne-half per cent, of alcohol.

Appellant next contends for a reversal of the judgment because the court refused to give the-three instructions requested by him. We have carefully read these instructions and find that they were covered, in substance, by the instructions given by the court.

Appellant next contends for a reversal of the judgment .because he alleges an illegal search, was made of his premises and that the home brew, whiskey,-paraphernalia, bottles and other “stuff” found were introduced in evidence to convict him. We do not understand that he objected to 'the introduction of the evidence, obtained in -the ■seárch upon the ground that it was illegally procured, and that he saved and preserved his objection to the introduction thereof in his motion for a new trial. In other words, it seems to us that an assignment of error is insisted upon for a reversal which was not made and preserved in the trial court. . . :

Lastly, appellant contends for a reversal • of the judgment upon the ground that there- is no substantial evidence to show that appellant manufactured intoxicating liquors. Appellant’s premises were searched by officers, and in a part of it theretofore occupied by a tenant, who had vacated same,-they found 125 gallons of home brew, some wine and whiskey, about 8 cases of malt syrup-, some hops, hop extracts, and several large crocks, and a bottle-capper.

James Floyd, a deputy -sheriff who assisted in the search, testified in part as follows:

“A. I asked,‘How do you realize any money out of ■it; -do you give chicken dinners or something like that, and charge?’ He said, ‘No, I make it for my own use.’ Q. Was nothing else said, Jim? A. Well, when he first came in there he said, ‘If any law has been violated,’ he said, ‘this stuff is mine; I am the guilty party’.”-

Bill Ozent, another deputy sheriff who assisted in the search, testified in part that appellant said, “If there has been any law violated, I have violated the law.”

O. B. Knapp, Federal prohibition agent, testified that he asked appellant who made the stuff, and'he said he did not; that he then asked him if his wife made it, and he replied, “Whatever is made, I am responsible for it.” Knapp also testified that he took four bottles of the home brew to a government chemist for analysis, and the chemist’s analysis showed it contained four and one-half per cent, of alcohol. He was corroborated in this statement by the chemist.

' Appellant denied making the statement attributed to him- concerning the manufacture of the brew, and testified that he purchased the brew, whiskey, and other things found in the apartment, from Ms former tenant for $145 at the time his tenant vacated the premises.

The large amount of ingredients and Jthe quantity of home brew found indicated that the brew was manufactured on the premises. Appellant’s statements to the officers were inconsistent with his subsequent claim that he had purchased the liquors and ingredients from Ms former tenant. After carefully reading the testimony, we have concluded that there was evidence of a substantial nature from which the jury might have drawn a reasonable inference that appellant manufactured the home brew in question.

No error appearing, the judgment is affirmed.


author: Per Curiam :

text:
    Robertson v. Yarbrough.
    Opinion delivered October 1, 1923.
    1. Appeal and error — final judgment. — A decree dismissing for want of equity a complaint seeking to have plaintiff’s title to certain land quieted and granting the prayer of cross-complainants for the quieting of their title is, so far as the title to the land is concerned, a final decree and appealable, though it reserved for future consideration a claim by plaintiff for taxes paid.
    2. Appeal and error — final judgment. — A decree in an action to quiet title allowing plaintiff’s claim for taxes, but failing to specify the amount due, is incomplete so far as recovery of the taxes is concerned, and therefore is not final or appealable as to such allowance.
    Appeal from Lee Chancery Court; A. L. Hutchins, Chancellor;
    appeal dismissed.

      E. ID. & Jas. Robertson and Baggett 'S Baggett, for appellant.

      H. F. Boleson and G. W. Norton, for appellee.
   Per Curiam :

Appellant, claiming title to a certain tract of land in Lee Connty by inheritance and also by an additional chain of title under judicial sale, instituted this action in the chancery court of Lee County against appellees to quiet her title against asserted claims of appellees. In an amendment to the complaint there was a prayer for a lien for taxes in the event the decision of the court was adverse to appellant’s claim of title. Appellees answered, denying the allegations of the complaint with respect to'appellant’s assertion of title, and also pleaded the statute of limitations. Appellees also filed a cross-complaint alleging that they were the owners and in actual possession under a probate sale of the title of appellant’s ancestor, and prayed that their title be quieted.

The record shows that a decree was rendered ¡by the court on November 16, 1920, finding against appellant on her assertion of title and dismissing her complaint for want of equity, ¿nd sustaining the cross-complaint of appellees by quieting their title, ‘ ‘ except as to taxes paid herein on the twenty-five acres in controversy, together with interest thereon at six per cent, per annum, paid by plaintiff, for which judgment is rendered against defendant, and the court retains jurisdiction of this cause for the purpose of ascertaining the amount of same.” The court also rendered judgment against appellant for costs of the action.

There was another entry of a decree on November 20, 1922, in substance the same as the former decree entered on November 16, 1920, except that, instead of reserving the case for ascertainment of the amount of taxes, the court proceeded to ascertain the amount, but the amount is not stated in 'the decree — the blank for that purpose is unfilled as the record appears before us. The last entry concludes with the following paragraph: ‘ ‘ And it appearing that this decree was rendered in part on November 16, 1920, and in part on the 18th day of October, 1922, it is hereby ordered to be entered mmc pro tunc.”

The present appeal was granted by the clerk of this court on May 17, 1923. Counsel for appellees have filed a motion to dismiss the appeal on the ground that it was not prosecuted within the time allowed by statute, that is to say, within six months from the date of the final decree.

This court is of the opinion that the decree of November 16, 1920, was final and appealable, except as to the lien for taxes, and that the appeal granted by the clerk of this court was too late. This subject is fully discussed in the case of Davie v. Davie, 52 Ark. 224, and the questions as to wliat constitutes a final judgment or-decree are set at rest. It was settled in that case that a decree is final “where a distinct and severable branch of the cause is finally determined, although the suit is not ended,” though “the unnecessary splitting of causes by courts of chancery creates confusion and difficulty in practice, and is condemned.”

A consideration of the substance of the decree makes it clear that there was a complete and final determination of the cause so far as it related to appellant’s assertion of title in her complaint and the assertion of title made by appellees in their cross-complaint. The court dismissed appellant’s complaint for want of equity and granted the prayer of the cross-complaint of appellees so far as it related to the title to the land.

The case cited above also declares the law on this subject to be that, where the decision of the court only settled matters of law or fact preparatory to the final adjudication of the rights of the parties without awarding the relief sought, but leaving it to further investigation to determine the extent of the relief, the decree is not final. In the present case, however, the relief was complete and left nothing further to be done towards awarding to appellees the fruits of the decision. Appellees were in possession of the property, and- the court quieted their1 title and dismissed the complaint of appellant. Nothing further was necessary to carry the decree into effect. The reservation of jurisdiction of the court for the purpose of ascertaining the amount of the taxes had no relation to the settlement of the right to the property, except the extent of the alternative relief asked and prayed for by appellant for recovery of taxes. The decree was not final as to that matter, but was final as to the other matters adjudicated.

It follows therefore that the appeal must be dismissed as to all matters covered by the decree entered on November 16, 1920.

There is a controversy between the parties as to the conclusion to be drawn from the record as to the date of the last decree, appellees asserting that, according to the record, the decree was pronounced on October 18, 1922, and actually entered, nunc pro tunc, on Nov. 20, 1922; whilst the contention of appellant is that, under the state of the record, it does not appear that the decree was pronounced by the court earlier than the day of its entry on November 20, 1922. Without going into that controversy, it appears to us that the decree, in omitting the amount of the taxes, is still incomplete, so that it is not final. That part of the appeal will also be dismissed because it is not final and appealable, but without prejudice to the right of appeal after such a decree is rendered which actually awards the amount of taxes.

The motion of appellees is therefore sustained, and the appeal on the whole cause will be dismissed.


author: McCulloch, C. J.

text:
    Satterfield v. Loupe.
    Opinion delivered October 1, 1923.
    1. Appeal and error — bringing op agreed statement op pacts.— An agreed statement of facts can be brought up in the record only by bill of exceptions or by incorporating it into the bib of exceptions; merely filing it with the papers being insufficient.

      2. Appeal and ERROR — absence op testimony — presumption.—In the absence of the testimony upon which a judgment is based, the Supreme Court will assume that it was sustained by sufficient evidence when the judgment is not inconsistent on its face, nor with the issues raised by the pleadings.
    Appeal from. Yell Circuit Court, Dardanelle District; A. B. Priddy, Judge;
    affirmed.

      Herbert G. Scott, for appellant.
    The lien of a warehouseman for storage of- mortgaged property is inferior to the claim of the mortgagee. 7 Cyc. 39. The lien of the warehouseman and the mortgagee are common-law liens, and the senior one prevails. 7 Cyc. 40. Where the bailee has a common-law lien, it is subordinate to a lien created by a properly recorded mortgage. 5 Cyc. 198.
    No brief for appellee.
   McCulloch, C. J.

Appellant instituted this action to recover possession of a lot of potatoes, the title and right of possession to which was claimed under a mortgage. It is alleged that the potatoes were wrongfully withheld from appellant. by appellee (defendant below), and recovery of damages was also prayed for the detention.

Appellee answered, denying appellant’s allegations of ownership and right of possession, and alleging that the potatoes had been stored in appellee’s warehouse by the grower and owner thereof, and that appellee had a lien for storage charges.

The cause was tried, by consent, before the court sitting as a jury, and judgment was in favor of the appellee, from which an appeal has been prosecuted.

The record entry of the judgment recites that the cause was heard upon the testimony of witnesses, but-there appears in the transcript an agreed statement of facts, upon which counsel for appellant say the case was heard. There is no bill of exceptions in the record, and the agreement concerning the facts can only be brought upon the record by a bill of exceptions or 'by incorporation into the judgment entry. The mere filing of the agreed statement of facts does not make it a part of tbe record. Coonrad v. Anderson, 55 Ark. 354; Kinnanne v. State, 106 Ark. 280; First National Bank of Fort Smith v. Thompson, 124 Ark. 161.

In tlie absence of the testimony upon which the judgment is based, we must assume that there was sufficient evidence to sustain the judgment, which is not inconsistent on its face nor with the issues raised in the pleading.

Judgment affirmed.


text:
    Watts v. State.
    Opinion delivered October 1, 1923.
    Intoxicating liquors — violation op state law. — Defendant was convicted in a mayor’s court under a town ordinance for transporting liquor into the town. On appeal to the circuit court it was found that the ordinance was not broad enough to cover the offense, but a conviction was sustained under Crawford & Moses’ Dig., § 6165, making it a misdemeanor to transport liquor from one place to another in the State. Held no error.
    Appeal from Cleveland Circuit Court; Turner Butler, Judge;
    affirmed.

      George Broton, for appellant.

      J. S. Utley, Attorney General, John L. Garter, Wm. T. Hammock and Darden Moose, Assistants, for appellee.
   McCulloch, C. J.

Appellant was convicted below on the charge of transporting intoxicating liquor in violation of the statute which makes it a misdemeanor, punishable by fine, to transport such liquor “from one place to another in this State.” Crawford & Moses’ Digest, § 6165. The prosecution originated before the mayor of the incorporated town of Bison, Cleveland County, where the appellant was found guilty, and ah appeal was prosecuted by him to the circuit court.

The evidence was legally sufficient to warrant the finding by the jury that appellant transported intoxiea-t-ing liquor along one of the streets in the town of Bison, and the court submitted the evidence under instructions setting forth the aforementioned statute, which declares such conduct to he a violation of law. Appellant objected to the instructions on the ground that he had been tried before the mayor under an ordinance of the town, and that, since the facts were not sufficient to support a conviction under the ordinance, there could he no conviction under the statute.

Appellant introduced as a witness the mayor, who exhibited the ordinance of the town, and stated that he tried appellant under that ordinance, and found him guilty. It appears from a perusal of the ordinance as exhibited in the evidence that the transportation of liquor is not made an offense. The only inhibition in the ordinance is against the transportation of liquor into the town, or a delivery of such liquor within the town.

The only contention of counsel a.s ground for reversal is that, there having been a trial under the ordinance, the prosecution could not be shifted in the trial in the circuit court on appeal to a prosecution under the statute. Counsel is wrong in this contention, for the facts of the case bring it squarely within the decision of this court in Marianna v. Vincent, 68 Ark. 244. The procedure in that case was precisely the same as in the present case. The prosecution was instituted before the mayor of the incorporated town under an ordinance, and on appeal to the circuit court the charge was dismissed by that court for the reason that the ordinance was void, but this court decided (quoting from the syllabus), that “whether the ordinance in question was void or not, the mayor, having the same criminal jurisdiction as a justice of the peace, had jurisdiction to try him for a violation of Sandels & Hill’s Digest, § 4862, making it a misdemeanor to sell liquor without a license.” In disposing of that case, the court said: “The mayor having once obtained jurisdiction, the case should not have been subsequently dismissed for want of jurisdiction by tbe circuit court, merely on mistakes by law made by tbe mayor, or for any other irregularity, but it should have proceeded to try tbe case de nova, and render such judgment as was proper therein.”

It follows from tbe above decision that, in tbe present case, tbe circuit court was correct in proceeding to try appellant under tbe statute of tbe State directed against transportation of liquor, even though the mayor of Rison had erroneously preferred the charge under an ordinance of the town which was insufficient to cover the facts in this case.

The judgment is therefore affirmed.