CASES ARGUED AND DETERMINED IN THE SUPREMF, COURT OE THE STATE OF ARKANSAS, AT NOVEMBER TERM, 1887. DAVIS V. STATE. I. INDICTMENT : Sale of liquors: Offense charged as committed in different ways. An indictment under Mansf. Dig.sec. 4511, which alleges that the defendant "unlawfully did sell and was unlawfully interested in the sale of one pint of alcoholic, ardent, and vinous liquors, and intoxicating spirits, without having first procured a license," etc., is sufficient, and charges but one offense. Thompson v. State, 37 Ark., 408. 2. LIQ UORS : Unlawful sale of: Instructions. 'On the trial of an indictment under sec. 4511 Mans. Dig., for the unlawful sale of intoxicating liquors, where the State proved that the defendant had sold a bottle of "McLean's Strengthening Cordial," which the evidence tended to show was an intoxicating compound, containing a certain per cent of alcohol, or ardent spirits and there was no proof that he was a licensed dealer, it was not error to instruct the jury that if they found that such cordial was "a compound, or composed in part, of alcohol, and is an intoxicating liquor, and was used er could be used as a beverage," the y would be authorized to convict the defendant. Nor was it error in such case to instruct the jury, that if they found "that the article sold was not used, or could not be used, as a beverage," they would be authorized to acquit the defendant. Goslorf v. State, 39 Ark., 456, 460. !See statement of the case for other instructions adven b y the Court.— Rep.] 50 Ark.-2
18 SUPREME COURT OF ARKANSAS, [50 Ark. Davis v. State. APPEAL from Newton, Circuit Court. R. H. POWELL, Judge. STATEMENT. The defendant was indicted for selling intoxicating liquors without a license. The indictment charged that on the eighth day of February, 1887, he "unlawfully did sell and was unlawfully interested in the sale of, one pint of alcoholic, ardent and vinous liquors and intoxicating spirits, without having first procured," etc. FTc filed a motion to require the State to elect for which offense she would prosecnte, alleging that•the indictment charged him with the orense of selling alcOholic liquor", of selling ardent liquors, of selling , yinous liquors, of selling intoxicating spirits, and of beincr interested . in tlie sale of these. His motion was overruled, and he then demurred to the indictment on the following grounds: (11 .Because there is a misjoinder of offenses charged; and (2) bacanse the indictment does not state facts sufficient to constitute a public offense. The court overruled the demurrer, and the case was tried by a jury. On the , trial the State proved that the defendant had sold a : bottle of "McLean's Strengthening Cordial," which the evidence tended to show was an intoxicating compound, containing a certain par cent. of alcohol or ardent spirits. There was no proof that he was a licensed dealer. The court g ave to the jury, over the defendant's objection, the followin g in-stractions: "If the jury believe beyond a reasonable donbt, from the evidence, that "McLean's . Strengthening Cordial" is a compound, or composed in part, of alcohol, and is an intirjcating liquor, and was 'used or could be ws'ed as a ben e-a g e, the sale of it would be within the inhibition of tlie 4ntut.e. and you would be authorised to convict the defendant."
50 Ark.] NOVEMBER TERM, 1887. 19 Davis v. State. "If the jury believe from the evidence that the article. sold by the defendant was not used and could not be used as a beverage, you would be authorized to acquit the defendant." The court also gave to the jury. sec. 4507 Mansf. Dig., which prohibits the sale without license, af tonics, bitters, or medicated liquors, etc., and charged that the sale of alcoholic, ardent, or vinous, or intoxicating spirits, without first having procured a license, was a violation of the law; but "that it was not the intention of the law to prohibit the sale of medicines because they contained a proportion of alcohol;" and that therefore the fact "that the article sold by the defendant contained alcohol, is not of itself evidence that the sale of such article without license was unlawful." The defendant was convicted, and filed his motions in arrest of judgment and for a new trial. These motions having been overruled, he took a bill of exceptions and appealed. J. F. Wilson, for appellant. 1. The indictment charged more than one offense. Mansf. Dig. secs. 2105; 2108-9, &c: 2. The court should have required the State to elect which charge it would proceed upon. 38 Ark., 555. D. W. Jones, Attorney-General, for appellee: 1. The indictment follows substantially the language of the statute. Mansf. Dig., sec. 4511; 39 Ark., 216; 35 Id., 514. 2. As to instructions, see 39 Ark., 456. 3. The fact that appellant thought he was selling on the prescription of a physician, cannot relieve him. 36 Ark., 36; 39 Id., 209; 43 Id., 361. 4. Nor was ignorance any justification. 36 Ark., 258; 37 Id., 219.
20 SUPREME COURT OF ARKANSAS, [50 Ark. OPINION. COCKRILL, C. J. The rulings of the circuit court on the objections to the indictment come within the principle of the case of Thompsom v. State, 37 Ark., 408. That part of the charge to the jury complained of is without objection and was approved in Gostorf v. State, 39 Ark., 456, 460. Affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.