Dale v. State

120 S.W. 389, 90 Ark. 579, 1909 Ark. LEXIS 518

• Court: Supreme Court of Arkansas
• Decided: May 31, 1909
• Status: Published

Opinion

Wood, J.

(after stating facts). It has often been ruled that one who aids another in the sale of whisky contrary to law is guilty as a principal offender, no matter what subterfuge is resorted to, or what means are employed to accomplish the sale. Foster v. State, 45 Ark. 361. But it is also well settled that where there is no statute against the purchase of whisky, one who assists the purchaser in buying the whisky and confines his participation in the transaction exclusively to the buying and not to the selling is not guilty of any offense. Fenix v. State, post. p. 589; Foster v. State, 45 Ark. supra; Whitmore v. State, 72 Ark. 14. See Anderson v. State, 82 Ark. 405; Black, Int. Liquor, Sec. 381. But the law does not tolerate any device whatsoever. Therefore where one for the seller procures or assists in procuring a purchaser, or stands by and assists the seller in making a sale, or assists both seller and buyer to make a sale that could not be made without his aid, then he is a particeps criminis, and, in law, a principal offender, and may be so punished.

The court did not err in refusing appellant’s prayer. For, conceding that appellant confined his activities solely to the buying side, and that he was in no manner interested in the sale, and did nothing whatever to assist the seller in making it, still the prayer does not present that issue. It tells the jury that if Dale merely, at the request of Starrett, stood good to Shorty for the payment of the money by Starrett, and that he was not interested in the whisky, then in that event appellant would not be guilty. But that is not the law. One might be interested in the sale and aiding the seller, and yet have no interest in the whisky being sold. One might be employed by another to assist him in making a sale, and act as his agent in making the sale of a commodity, and yet have no interest whatever in the thing being sold. He might be interested in the proceeds of the sale, or interested in making the sale because of some pecuniary or other benefit that he expected to reap from it, and yet not have any interest in the thing that was being sold. The distinction is clear, and it is vital.

The instruction was well calculated to mislead the jury. The court therefore did not err in refusing it. If appellant desired the jury instructed along the lines contended for in his brief, he should have presented a correct prayer.

Finding no error, the judgment is affirmed.