{ "id": 1554886, "name": "Payne v. State, Use City of Booneville", "name_abbreviation": "Payne v. State ex rel. City of Booneville", "decision_date": "1916-05-15", "docket_number": "", "first_page": "20", "last_page": "25", "citations": [ { "type": "official", "cite": "124 Ark. 20" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "64 Ark. 247", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907416 ], "weight": 3, "pin_cites": [ { "page": "357" }, { "page": "353" } ], "opinion_index": -1, "case_paths": [ "/ark/64/0247-01" ] }, { "cite": "43 Ark. 367", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1894491 ], "opinion_index": -1, "case_paths": [ "/ark/43/0367-01" ] }, { "cite": "93 Ark. 32", "category": "reporters:state", "reporter": "Ark.", "weight": 2, "pin_cites": [ { "page": "149" } ], "opinion_index": -1 }, { "cite": "114 Ark. 391", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1536311 ], "pin_cites": [ { "page": "392, 393" } ], "opinion_index": -1, "case_paths": [ "/ark/114/0391-01" ] }, { "cite": "156 Ala. 140", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 3504391 ], "opinion_index": -1, "case_paths": [ "/ala/156/0140-01" ] }, { "cite": "24 L. R. A. (N. S.) 268", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": -1 }, { "cite": "72 Ark. 14", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1505498 ], "opinion_index": -1, "case_paths": [ "/ark/72/0014-01" ] }, { "cite": "68 Ark. 248", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1334124 ], "opinion_index": -1, "case_paths": [ "/ark/68/0248-01" ] }, { "cite": "45 Ark. 165", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892059 ], "weight": 2, "pin_cites": [ { "page": "292" }, { "page": "165" } ], "opinion_index": -1, "case_paths": [ "/ark/45/0165-01" ] }, { "cite": "43 Ark. 289", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1894515 ], "opinion_index": -1, "case_paths": [ "/ark/43/0289-01" ] }, { "cite": "51 Ark. 550", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724647 ], "opinion_index": -1, "case_paths": [ "/ark/51/0550-01" ] }, { "cite": "149 N. C. 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271371 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/nc/149/0537-01" ] }, { "cite": "47 So. 245", "category": "reporters:state_regional", "reporter": "So.", "weight": 2, "opinion_index": -1 }, { "cite": "156 Ala. 396", "category": "reporters:state", "reporter": "Ala.", "opinion_index": -1 }, { "cite": "50 So. 396", "category": "reporters:state_regional", "reporter": "So.", "case_ids": [ 3527667 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ala/162/0060-01" ] }, { "cite": "45 Ark. 361", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892005 ], "weight": 2, "pin_cites": [ { "page": "462" } ], "opinion_index": -1, "case_paths": [ "/ark/45/0361-01" ] }, { "cite": "37 Ark. 405", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1870910 ], "opinion_index": -1, "case_paths": [ "/ark/37/0405-01" ] }, { "cite": "90 Ark. 589", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1513845 ], "opinion_index": 0, "case_paths": [ "/ark/90/0589-01" ] }, { "cite": "90 Ark. 579", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1513869 ], "opinion_index": 0, "case_paths": [ "/ark/90/0579-01" ] }, { "cite": "111 Ark. 51", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1540443 ], "opinion_index": 0, "case_paths": [ "/ark/111/0051-01" ] }, { "cite": "94 Ark. 178", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1545404 ], "opinion_index": 0, "case_paths": [ "/ark/94/0178-01" ] }, { "cite": "39 Ark. 174", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898624 ], "opinion_index": 0, "case_paths": [ "/ark/39/0174-01" ] }, { "cite": "114 Ark. 391", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1536311 ], "opinion_index": 0, "case_paths": [ "/ark/114/0391-01" ] }, { "cite": "72 Ark. 14", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1505498 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/72/0014-01" ] }, { "cite": "45 Ark. 361", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892005 ], "opinion_index": 0, "case_paths": [ "/ark/45/0361-01" ] }, { "cite": "37 Ark. 405", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1870910 ], "opinion_index": 0, "case_paths": [ "/ark/37/0405-01" ] } ], "analysis": { "cardinality": 508, "char_count": 11001, "ocr_confidence": 0.471, "pagerank": { "raw": 2.0980222048992996e-07, "percentile": 0.7613021068023657 }, "sha256": "51dadd0cf18f923218770fae80ca0f2025ec1826545ac0b65e2c1e4a547c6030", "simhash": "1:8aaaf5b5180d0dc8", "word_count": 1977 }, "last_updated": "2023-07-14T18:14:49.378710+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Kirby, J., dissents." ], "parties": [ "Payne v. State, Use City of Booneville." ], "opinions": [ { "text": "Wood, J.\nAppellant was convicted before the mayor of Booneville of the offense of procuring alcohol for another in violation of section 5135 of Kirby\u2019s Digest. The city had no ordinance upon the subject, and the appellant was convicted under the above statute.\nThe bill of exceptions shows that \u201cit was admitted by the attorney for the city that in the trial of the case below before the trial the defendant moved the court to dismiss the action for want of a bond for cost's; * * * that no bond for costs was given, and that the motion of the defendant made in the mayor\u2019s court to dismiss the case for lack of a bond for costs was overruled; that the defendant thereupon renewed .his motion in the circuit court to dismiss this prosecution for want of a bond for costs. The court overruled defendant\u2019s motion, and the defendant at the time saved his exceptions.\nFirst. The ground of the motion for a new trial is, that the court erred in overruling defendant\u2019s motion to dismiss the cause for want of a bond for costs, and this is likewise the first assignment of error urged for reversal of the judgment. The statute provides that, \u201cIn all prosecutions in cases less than felonies in courts of justices of the peace and in other inferior courts, the prosecutor, or some person for him, shall enter into bond, with good aud sufficient 'Security, for the payment of all the costs which may .accrue in said prosecution.\u201d Kirby\u2019s Digest \u00a7 2476.\nUnder this statyte if the defendant moves to dismiss the case because no bond for costs has been filed, and makes this motion before the trial, that is, before any affirmative steps have been taken to ascertain whether he is guilty or innocent of the crime charged, he will be entitled to have the case dismissed or the action against him abated unless the prosecutor, or some one for him, shall enter into bond for the payment of costs as the statute provides. This is a mandatory provision of the statute, and unless the defendant waives it by pleading not guilty or taking some other affirmative steps in the case before making the motion, then he is entitled to it, and if the motion is thus made in apt time it is the duty of the court before whom the prosecution is pending to require the bond to be executed. In ease of a failure to execute the bond, under such conditions, the court should dismiss the cause. But where the bond is not executed and\" defendant fails to move to dismiss on that account in limine, or before he takes any other affirmative steps in the case, then he has waived his right under the statute and he can not at any time in the progress of the case avail himself of it. Such is the effect of our decisions. See Mann v. State, 37 Ark. 405 ; State v. Parker, 39 Ark. 174; Laur v. State, 94 Ark. 178; Jones v. State, 111 Ark. 51.\nHere the record shows that the defendant, \u201cbefore the trial moved to dismiss the action for want of a bond for costs.\u201d It thus appears that the first affirmative step taken by the defendant in the case was his motion to dismiss. This meets the requirement of the law, as held in Jones v. State, supra, and other cases, that matters in abatement must be raised in limine, or before any other affirmative .'steps are taken by the defendant in the cause.\nThe court therefore erred in overruling appellant\u2019s motion to dismiss, and in not requiring the bond as the statute provides.\nSecond. Appellant was convicted under an aot entitled, \u201cAn Act to aid in the suppression of the illegal sale of intoxicating liquors,\u201d which provides: \u201cIt shall be unlawful for any person to either directly or indirectly procure or purchase for another any alcohol, etc. * * * in any district or territory where the same is prohibited by law. Provided, this act shall not prohibit one person from buying 'for another from a licensed dealer.\u201d Section 2 of the act prescribes the penalty. Act 191, Acts of 1899, Kirby\u2019s Digest, \u00a7 5135.\nIt was the intention of the Legislature to make criminal that which was not so before the passage of the act; that is to directly or indirectly procure or purchase for another any alcohol, etc., in any territory where the ' sale of liquors is prohibited.\nWhere there is any ambiguity in the language of a statute, in order to ascertain the meaning of the Legislature the court will not only look to the language of the act itself, ibut may also look to the title of the act. Here the meaning of the Legislature is plain when all the language is considered, and the act is viewed as a whole in connection with -the title. By expressly prohibiting any one from procuring or purchasing for another the liquors named, the Legislature intended to'aid in the suppression of the illegal sale. The proviso was merely surplusage, and was obviously added to emphasize the idea that the act applied only to territory where the sale of the liquors named was prohibited and therefore illegal. The proviso did not render the act void. For it is clear that the Legislature would have enacted the statute, and that it would have b\u00e9en a complete act, with the proviso eliminated.\nThis court has ruled that a defendant indicted under statutes mailing it unlawful to sell liquors, can not be convicted where the proof showed that he only purchased or aided the purchaser. Woods v. State, 114 Ark. 391; Dale v. State, 90 Ark. 579; Fenix v. State, 90 Ark. 589; Whitmore v. State, 72 Ark. 14; Foster v. State, 45 Ark. 361.\nIn such cases there would be a fatal variance between the charge and the proof. Even if there were a statute prohibiting one from purchasing liquor for .himself a defendant could not be 'convicted under such statute, if the charge and the proof was that he sold, but did not purchase. But we have no statute making it unlawful for one to purchase whiskey.\nIn Whitmore v. State, 72 Ark 14, Judge Riddick, speaking for the court, said:\n\u201cThe license is required of those who sell, not of those who buy and one may purchase, either for himself or another, all the whiskey in the State, and under our statute he comim.its no crime by making the purchase. \u2019 \u2019 But this language was used in a case where the defendant was indicted for the illegal sale of liquor, and where the proof was that the defendant bought liquor for others, from a licensed dealer in St. Louis. The language of the learned justice must be taken in connection with the facts. The court in this case and in all the cases cited and relied on by appellant did not have under review and was not called upon by the facts presented in those cases to pass upon the question as to whether the statute under consideration was a valid law. The court\u2019s attention was not directed to it, and if the language used in any of the decisions indicates that the statute now under consideration was not in existence and that it was not a valid statute, such language was obiter.\nThis court has never decided that Section 5135 of Kirby\u2019s Digest is not a valid enactment. But we hold now that it is. See also Woods v. State, supra.\nThird. The evidence was sufficient to sustain the verdict.\nFourth. The instructions of the court as a whole contain no prejudicial error. However, the court in its fifth instruction should not have used this language, \u201cnotwithstanding you may not approve of and may condemn the conduct and actions of witnesses Holt and Mc-Nutt.\u201d The instruction was complete without this language, and this is not correct language in an instruction on the credibility of witnesses.\nFor the error in overruling appellant\u2019s motion to dismiss, the judgment is reversed and the cause is remanded with directions to sustain this motion unless the bond is executed.\nKirby, J., dissents.", "type": "majority", "author": "Wood, J." } ], "attorneys": [ "J. H. Evans, for appellant.", "Wallace Davis, Attorney General, and Hamilton Moses, Assistant Attorney General, for appellee." ], "corrections": "", "head_matter": "Payne v. State, Use City of Booneville.\nOpinion delivered May 15, 1916.\n1. Criminal procedure \u2014 bond for costs \u2014 dismissal.\u2014Under Kirby\u2019s Digest, \u00a7 2476, where a motion to dismiss a prosecution is made before any affirmative steps have been taken in the trial, the defendant is entitled to have the cause dismissed, unless the prosecutor, or some one for him, shall -enter into a bond for costs.\n2. Abatement \u2014 issue raised when. \u2014 Matters in abatement must be \u25a0raised in limine, or before any affirmative steps are taken by the defendant in the cause.\n3. Liquor \u2014 purchase for another. \u2014 By Act 191, Acts of 1899 (Kirby\u2019s Digest, \u00a7 5135), the Legislature made criminal that which was not so before the passage of the act, viz., to directly or indirectly procure or purchase for another any alcohol, etc., in any territory where the sale of liquors is prohibited.\n4. Statutes \u2014 interpretation.\u2014Where there is any ambiguity in the language of a statute, the court, to ascertain the meaning thereof, will look, not only to the language of the act, but to the title of the act also.\n5. Liquor \u2014 purchase for another. \u2014 The proviso in section 2, Act 191, Acts 1899, that \u201cthis act shall not -prohibit one person from buying for another from a licensed dealer,\u201d held to he surplusage and not to render the act void.\n6. Liquor \u2014 procurement for another. \u2014 Kirby\u2019s Digest, \u00a7 5135, denouncing the crime of purchasing or procuring liquor for another in prohibition territory, held valid.\nAppeal from Logan Circuit Court, Southern District; James Cochran, Judge;\nreversed.\nJ. H. Evans, for appellant.\n1. No -bond for costs was filed and no affidavit for a warrant. Booneville is a city of the second class. Kirby\u2019s Digest, \u00a7 \u00a7 2488, 2490, 2476; 37 Ark. 405; 39 Id. 175; 111 Id. 51; 94 Id. 175.\n2. Kirby\u2019s Digest, \u00a7 5135, is not a valid law. 45 Ark. 361; 105 Id. 462; 90 Id. 579, 589; 72 Id. 14; Act 191 Acts 1899. .Prior to the passage of the act and since, the mere purchasing or procuring for another, intoxicating liquor where the seller sells unlawfully is not a violation of the law. Black on Interpretation of Laws, \u00a7 \u00a7 40, 65, 113, 114, etc; 50 So. 396; 156 Ala. 396; 47 So. 245; 149 N. C. 537.\n3. But if section 5133, Kirby\u2019s Digest, is a valid criminal statute there is no proof in this case that defendant was guilty. Kirby\u2019s Digest, \u00a7 2385; 51 Ark. 550. The court erred in its instructions to the jury. Instructions upon the weight of the evidence or assumed facts which are for the consideration of the jury are erroneous. 43 Ark. 289; 45 Ark. 165, 292; 49 Id. 165.\nWallace Davis, Attorney General, and Hamilton Moses, Assistant Attorney General, for appellee.\n1. Appellant waived the right to dismiss for want of a bond for costs. Such a motion is in abatement and must be in limine. Ill Ark. 51; 37 Id. 407; etc. No bond for costs was necessary. Kirby\u2019s Digest, \u00a7 \u00a7 5463, 6388, 5590; 68 Ark. 248. \u2019\n2. Kirby\u2019s Digest, \u00a7' 5135, is a valid law. 72 Ark. 14; 105 Id. 462; 90 Id. 579, 589; 90 Id. 591; 24 L. R. A. (N. S.) 268, note; 149 N. C. 537; 50 So. 396; 156 Ala. 140; 47 So. 245; 114 Ark. 391, 392, 393; 93 Ark. 32; 99 Id. 149; 104 Id. 261.\n3. The trial court committed no error and the verdict was responsive to tbe evidence. 43 Ark. 367. There is no error in the instructions. 64 Ark. 247; 21 Id. 357; 58 Id. 353; 109 Id. 130; lb. 138." }, "file_name": "0020-01", "first_page_order": 44, "last_page_order": 49 }