{ "id": 1559455, "name": "Osborne v. State", "name_abbreviation": "Osborne v. State", "decision_date": "1915-11-22", "docket_number": "", "first_page": "160", "last_page": "165", "citations": [ { "type": "official", "cite": "121 Ark. 160" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "109 Ark. 130", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1341213 ], "weight": 2, "pin_cites": [ { "page": "138" } ], "opinion_index": -1, "case_paths": [ "/ark/109/0130-01" ] }, { "cite": "50 Ala. 91", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 5463526 ], "opinion_index": -1, "case_paths": [ "/ala/50/0091-01" ] }, { "cite": "44 Mo. 92", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 950185 ], "opinion_index": -1, "case_paths": [ "/mo/44/0092-01" ] }, { "cite": "110 Ark. 401", "category": "reporters:state", "reporter": "Ark.", "pin_cites": [ { "page": "409" } ], "opinion_index": -1 }, { "cite": "37 U. S. 657", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5619811 ], "opinion_index": -1, "case_paths": [ "/us/37/0657-01" ] }, { "cite": "148 U. S. 524", "category": "reporters:federal", "reporter": "U.S.", "opinion_index": -1 }, { "cite": "136 U. S. 479", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1217878 ], "opinion_index": -1, "case_paths": [ "/us/136/0479-01" ] }, { "cite": "60 Ark. 664", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "49 Ark. 60", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1309636 ], "opinion_index": 0, "case_paths": [ "/ark/49/0060-01" ] } ], "analysis": { "cardinality": 499, "char_count": 10965, "ocr_confidence": 0.441, "pagerank": { "raw": 5.207966869300525e-08, "percentile": 0.32696520144610747 }, "sha256": "a8ab8eb2c294f85a0d58258fb6dd8032fa785a8e47fc79b2f89f655568498368", "simhash": "1:aee991cebff60cfb", "word_count": 1937 }, "last_updated": "2023-07-14T19:35:38.519565+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Osborne v. State." ], "opinions": [ { "text": "McCulloch, C. J.\nAppellant was indicted by the grand jury of Mississippi County for the clandestine sale of liquor, committed in violation of what is known as the blind tiger statute, which reads as follows:\n\u201cAny person owning or using or controlling any house or tenement of any kind who shall sell or give away, or cause or allow to be sold or given away, or keep or allow to be kept for sale or to be given away, any alcohol, ardent or vinous spirits or malt liquors, or any compound or tincture commonly called bitters or tonics, whether the same be sold or given away openly of secretly, by such device as is 'known as \u2018the blind tiger,\u2019 or by any other name or under any other device,\" shall be deemed guilty \u25a0of a misdemeanor.\u2019\u2019 Kirby\u2019s Digest, \u00a7 5140.\nHe was arrested and placed in jail on .July 31, 1915, and remained therein until the indictment against him was returned by the grand jury on the 16th day of August, and was tried on September 17, 1915. The indictment charged that the offense was committed by appellant by keeping intoxicating liquors; for sale by a certain device known as the blind tiger in a certain house owned, used and controlled by him, 'known as the Andy Crum place, situated on Island 37, in the Mississippi Eiver, and which is in Mississippi County, Arkansas.\nAppellant filed a motion for postponement of the trial to enable him to procure the attendance of certain witnesses by whom it was alleged that he could prove that the whole of said Island No. 37 is situated in the State of Tennessee, and not in the \u00a1State of Arkansas. What he \u25a0alleged to be the testimony of each of the absent witnesses was set forth in the motion, and shows that the witnesses included certain officers of Tipton \u00a1County, Tennessee, and certain other persons, residents of the State of Tennessee, and also 'two or three persons who are alleged to have been residing then on Island No. 37. The testimony set out in the motion tends to show that the whole of Island No. 37 is within the boundaries of the State of Tennessee and that that State has always exercised exclusive jurisdiction over said island. The motion for postponement was overruled.\nThe testimony adduced \u00a1by the \u00a1State tended to show \u25a0that Island No. 37, or at least that portion of it on which the house in question of Andy Crum is located, was an island on the west or north side of the \u00a1channel of the Mississippi River when the boundary line of the State of Arkansas was established; that 'the Andy Crum house was fitted up for the \u00a1clandestine sale of intoxicating liquors which were kept there, and that witnesses purchased such liquors from appellant at that place numerous times during the months of January, February and March, in the year 1915. The testimony further shows that the house was \u00a1owned and occupied by Andy Crum and was known as the \u201cAndy Crum Place,\u201d and that there was a regular barkeeper, but that appellant stayed around the place and occasionally sold liquors from the bar. Appellant did not introduce any testimony. The court in its instructions submitted to the jury the questions whether or not the house was situated in Mississippi County, Arkansas, and whether or not appellant owned, .used or controlled the house and sold intoxicating liquors by a device known as the blind tiger.\nIt is insisted, in the first place, that the court erred in overruling the motion for a postponement, but we think it is not shown that the court abused its discretion. Appellant had been confined in jail more than a month and a half when his trial occurred, which was more than a month after the indictment against him was returned. He had not made \u00a1any effort to procure .the attendance of the witnesses \u00a1or to take their depositions. Two or three of the witnesses are \u00a1alleged to have resided on Island 37, over which -the circuit \u00a1court of Mississippi County was assuming jurisdiction, yet there was no effort to procure the attendance of those witnesses by process of that court. The fact to be proved by the absent witnesses was one of general notoriety and no reason was stated why the testimony of witnesses equally informed on the subject who resided within the jurisdiction of the court could not be obtained. The matter of granting 'continuances is one within the sound discretion of the trial court, and this court will not undertake to control the exercise of that discretion unless it is shown to have been abused. No abuse of discretion being shown, it is our duty to accept the ruling of the trial court as correct.\nOne of the State\u2019s witnesses, who was introduced to prove the venue, testified that in November, 1909, he made two surveys of the northern portion of said island, and made a plat or map .thereof. The witness identified a blue print of this map and the same was introduced in testimony over the objections of appellant. The witness stated that he did not make the blue print and had not compared it with the original map which he had formerly made, but his testimony demonstrated his familiarity with it and tended to establish the fact that it was a correct map of that locality. It was not essential that the original map should be introduced if the testimony of the witness was sufficient to identify the blue print as a correct map of the locality. The original map was not the best evidence in the sense that it must be introduced, or its loss proved, before a copy was admissible. In other words, the testimony of the witness in identification of the blue print made it competent testimony. Its. competency depended upon the testimony of the witness who identified it, notwithstanding the fact that it was not shown to have been an exact copy of the original. There was no error, therefore, committed by the .court in admitting the blue print in connection with the testimony of the witness.\nIt is next contended that the proof was insufficient to establish the fact that appellant owned, used or controlled 'the house described in the indictment, wdthin the meaning of the statute. The evidence is sufficient, however, to show that the house was owned and controlled by Andy 'Crum, and that appellant, in conjunction with said owner, clandestinely sold intoxicating liquors therein by the aforesaid device. Under those circumstances appellant, was indictable as a principal offender under this statute. It is not essential that the one who sells the liquor shall himself own or control the house, if he makes the sale in conjunction with the person who owns or \u00a1controls the house. One who owns or controls a house .and lets it to another person, knowing .at the time that it is to be used for the clandestine sale of liquor, is. guilty under the statute, and so is the one who sells 'the liquor or keeps it for sale if he does so with the consent or connivance of the owner. Grocker v. State, 49 Ark. 60. The proof in \u25a0this case shows that Andy Crum owned and controlled the house and that under the circumstances he must have known \u00a1and did know it was being used for the clandestine sale of liquor, and that appellant \u00a1sold liquor there in furtherance of the design. He is therefore guilty under the statute the same as if he had owned and controlled the house himself.\nThe instructions of the court were correct and embodied all the correct instructions which were requested by appellant. The issues were correctly submitted to the jury, \u2018and as there was evidence sufficient to sustain the verdict the judgment must be affirmed. It is so ordered.", "type": "majority", "author": "McCulloch, C. J." } ], "attorneys": [ "L. C. Going, for appellant.", "Wallace Davis, Attorney General, and Jno. P. Streepey, Assistant, for appellee." ], "corrections": "", "head_matter": "Osborne v. State.\nOpinion delivered November 22, 1915.\n1. Trial \u2014 continuances\u2014absent witness \u2014 discretion of court.\u2014 When defendant was tnied one month, after being indicted, it is-not an improper exercise of the discretion of the trial court to refuse a continuance upon defendant\u2019s motion on the ground of the absence of certain witnesses, when no diligence was shown in attempting to secure the attendance of the witnesses, and the fact to be proved by them was one of general notoriety.\n2. Evidence \u2014 venue\u2014identification of blue print. \u2014 In a criminal prosecution, when the \u00a1State was attempting to prove the venue, a \u00a1blue print of the locality in issue is admissible, when identified by the engineer who made the original drawing from which the blue print was made, notwithstanding it was not shown to have been an exact copy of the original; the original map was not the best evidence, in the sense that it must be introduced, or its loss proved, before a copy was admissible.\n3. Liquor \u2014 clandestine sale of \u2014 who mat be indicted. \u2014 One who owns or controls a house and lets it to another person, knowing at the time that it is to be used for the clandestine sale of liquor, is guilty under Kirby\u2019s Digest, \u00a7 5140, and so is one who sells liquor or keeps it for sale if he does so with the consent or connivance of the owner.\nAppeal from Mississippi \u00a1Circuit Court, Osceola District; W. J. Driver, Judge;\naffirmed.\nL. C. Going, for appellant.\n1. Under the circumstances of this c\u00e1se, it was an abuse of discretion to -overrule appellant\u2019s motion for a continuance. 60 Ark. 664. By the refusal of the court to give appellant time in -which to produce the evidence set out in his .motion he was denied the right to submit to the jury the question of whether or not the continued exercise of sole and exclusive jurisdiction by one State and the long .acquiescence by the other in the exercise of such jurisdiction, would determine the question in favor of the State which had long exercised jurisdiction. 136 U. S. 479; Vnttel on Law of Nations, Book 2, chap. 11, \u00a7 149; 148 U. S. 524; Wheaton on International Law, part 2, chap. 4, \u00a7 164; 37 U. S. 657.\n2. The court erred in .admitting the blue -print map in evidence. Copies of maps, plats and instruments of writing are not admissible in -evidence if the originals are in possession of the party .and can be produced. This blue print was not sufficiently identified. The witness had never compared it with the original, and did not know who made it nor when.\n3. There- was no proof that the- appellant was the-owner, user, occupier or controller of the house described in the indictment.\nWallace Davis, Attorney General, and Jno. P. Streepey, Assistant, for appellee.\n1. The motion for continuance shows that all of the witnesses named therein were residents -of the State of Tennessee, and there was no showing that they could and would be produced at the trial if a -continuance was granted. The motion was properly overruled. 110 Ark. 401, 409.\n2. The blue print map was sufficiently identified. The witness identified it as a blue print of a map he had made, and testified that it was correct. He stated also that while the original map was probably in his possession, he did not .know where it was at the time of the trial. The blue print was .admissible. 79 N. W. (Minn.) 497, 499 ; 44 Mo. 92; 50 Ala. 91.\n3. The evidence was sufficient to 'Sustain the verdict. 109 Ark. 130; Id. 138; 78 S. W. (Ark.) 324, 325." }, "file_name": "0160-01", "first_page_order": 184, "last_page_order": 189 }