Smith v. State

16 S.W. 2, 87 Ark. 459, 1891 Ark. LEXIS 172

Opinion

Cockriue, C. J.

The bill of exceptions, as allowed by the circuit judge, leaves it in doubt whether the whisky which the appellant was charged with selling was shipped by the Helena dealer to the appellant, and was by him, as agent of the dealer, delivered to the purchasers; or whether it was shipped to the purchasers on the order of the appellant, and subsequently delivered to him by the express company as the agent of the purchasers. If the state of.facts last indicated exists, the sale was completed in Phillips County when the whisky was delivered to the carrier, and the appellant could not be convicted for selling in Lee County. Herron v. State, 51 Ark. 133. If the first supposition is the true state of case, the sale was completed in Lee County, where the liquor was delivered by the appellant, and the conviction would stand. Berger v. State, 50 Ark. 20.

But the bill of exceptions, as certified by the bystanders in accordance with the statute, must be taken as representing the true state of case. It relieves the case of all doubt, and brings it within the rule of the first case cited, unless the shipment in-the name of the. purchasers was only a subterfuge and was in reality a shipment to the vendor’s agent, the sale being incomplete until manual delivery to the purchasers. In that event, the case would still fall within the rule of Berger’s case, 50 Ark. supra. But the case does not appear to have been tried upon that theory. On the contrary, the judge refused to certify that that state of facts existed.

The judgment must therefore be'reversed, and the cause remanded for a new trial. It is so ordered.

Footnotes

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[Footnote.] This case was omitted from 54 Ark. in 1891, with the concurrence of Chief Justice Cockrill, and is now printed because it is cited by the court in the case of Boone v. Holder, which follows it. The Reporter did not at that time place the construction on the opinion which the Court now puts on it, as he believed that the opinion herein only meant to say that the Supreme Court in this case followed the bill of exceptions certified by the bystanders as representing the. facts. (Reporter.)