Houston v. State

49 S.W. 351, 66 Ark. 120, 1899 Ark. LEXIS 59

• Court: Supreme Court of Arkansas
• Decided: January 14, 1899
• Status: Published

Opinion

Riddick, J.

The appellant, Lee Houston, was tried and convicted of the crime of selling cotton upon which there existed a landlord’s lien for rent.

It is first said that the circuit judge erred in admitting evidence to show that the landlord, in addition to a lien for rent, also held a lien on the cotton for supplies furnished the tenant. But no question in reference to the admission of this evidence is presented here, for no objection was made to the evidence in trodueed at the trial or to the instructions of the court, and no exceptions of any kind was saved during the trial.

The only question raised by the appeal is, whether the evidence supports the verdict. The cotton which it is alleged that the defendant sold is described in the indictment as “four thousand pounds of seed cotton, the value of forty dollars.” Now, it is evident this description of the cotton is material. It points out and identifies the cotton which the defendant is charged with having unlawfully sold, and such allegation must be proved as made, for the defendant cannot, under this indictment, be convicted by showing that he sold some other kind of cotton. Adams v. State, 64 Ark. 188; Bryant v. State, 62 ib. 459. But there was no evidence that defendant sold seed cotton. The undisputed fact is that he did not sell seed cotton, but sold three bales of ginned cotton, and the evidence therefore fails on a material point. We conclude that the motion for new trial should have been granted, on the ground that the evidence does not support the verdict.

Judgment reversed, and cause remanded for a new trial.