{ "id": 1575070, "name": "Rogers v. State", "name_abbreviation": "Rogers v. State", "decision_date": "1918-03-04", "docket_number": "", "first_page": "85", "last_page": "90", "citations": [ { "type": "official", "cite": "133 Ark. 85" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "109 Ark. 138", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1341160 ], "opinion_index": -1, "case_paths": [ "/ark/109/0138-01" ] }, { "cite": "93 Ark. 168", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1546832 ], "opinion_index": -1, "case_paths": [ "/ark/93/0168-01" ] }, { "cite": "80 N. C. 472", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8697112 ], "opinion_index": -1, "case_paths": [ "/nc/80/0472-01" ] }, { "cite": "6 McLean 182", "category": "reporters:federal", "reporter": "McLean", "case_ids": [ 6134067 ], "opinion_index": -1, "case_paths": [ "/f-cas/27/0604-01" ] }, { "cite": "35 S. W. 543", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "109 N. C. 864", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651850 ], "opinion_index": -1, "case_paths": [ "/nc/109/0864-01" ] }, { "cite": "48 Ark. 40", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1887731 ], "opinion_index": -1, "case_paths": [ "/ark/48/0040-01" ] }, { "cite": "135 Ala. 61", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 8488003 ], "opinion_index": -1, "case_paths": [ "/ala/135/0061-01" ] }, { "cite": "134 La. 178", "category": "reporters:state", "reporter": "La.", "opinion_index": -1 }, { "cite": "41 S. W. 809", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "37 Ark. 408", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1870956 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ark/37/0408-01" ] }, { "cite": "91 Ark. 582", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1511787 ], "opinion_index": 0, "case_paths": [ "/ark/91/0582-01" ] }, { "cite": "132 Ark. 497", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1576803 ], "opinion_index": 0, "case_paths": [ "/ark/132/0497-01" ] }, { "cite": "5 W. Va. 508", "category": "reporters:state", "reporter": "W. Va.", "case_ids": [ 8641856 ], "opinion_index": 0, "case_paths": [ "/w-va/5/0508-01" ] }, { "cite": "109 Ark. 138", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1341160 ], "opinion_index": 0, "case_paths": [ "/ark/109/0138-01" ] }, { "cite": "93 Ark. 168", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1546832 ], "opinion_index": 0, "case_paths": [ "/ark/93/0168-01" ] }, { "cite": "37 Ark. 408", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1870956 ], "opinion_index": 0, "case_paths": [ "/ark/37/0408-01" ] } ], "analysis": { "cardinality": 548, "char_count": 9728, "ocr_confidence": 0.515, "pagerank": { "raw": 3.1981025523271937e-07, "percentile": 0.865702788077606 }, "sha256": "0c31da9d79e436adaf26cb438b841e22698da39f03e36180f77c9940009c10c0", "simhash": "1:cd07590a6c1cd67e", "word_count": 1666 }, "last_updated": "2023-07-14T15:39:19.700480+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HART and SMITH, JJ., dissent." ], "parties": [ "Rogers v. State." ], "opinions": [ { "text": "WOOD, J.\nAppellant was indicted as follows: \u2018 \u2018 The grand jury of Garland County, in the name of and by the authority of the State of Arkansas, accuse Henry Rogers of the crime of unlawfully receiving liquors, committed as follows, towit: The said Henry Rogers on the 18th day of September, 1917, in the County of Garland aforesaid, did unlawfully receive for storage, distribution or on consignment for another, alcoholic liquors, against the peace and dignity of the State of Arkansas. \u2019 \u2019 The indictment was under Section 7, Act 13 of the Acts of 1917;\nAppellant demurred to the indictment, which demurrer was overruled. Appellant was tried before a jury and convicted, and from a judgment entering up a fine against him in the sum of $100.00, he prosecutes this appeal.\n1. Appellant contends that the indictment is void for duplicity and uncertainty, citing authorities (our own among them), which hold that \u201cwhere a statute makes punishable various acts and.mentions them disjunctively, an indictment charging the commission \u00f3f two or more of such acts in one count must charge them conjunctively, unless the words, when so employed, are repugnant or synonymous.\u201d 22 Cyc. 338, 380; Thompson v. State, 37 Ark. 408.\nThe indictment under review is not repugnant to the above rule for the reason that it only charges one offense, namely, that of receiving liquors.\nThe statute under which appellant was indicted is as follows: \u201cThat it shall be unlawful for any person, firm or corporation or association, to' receive for storage, distribution, or on consignment, for another, the liquors mentioned in section one of this act, or any liquors,\u2019.\u2019 etc.\nThe indictment followed the language of the statute, and inasmuch as it charged only one offense, towit: the unlawful receiving of the prohibited liquors, it was sufficient. Nor was the offense one that might be committed in three different ways, as contended by counsel for the appellant. The offense could be committed in only one way, towit: by the act of unlawfully receiving the liquors. The words \u201cstorage, distribution, or on consignment\u201d only indicated the different purposes for which the liquor might be received. The offense is complete when the liquor is received for any or all of these purposes.\nIt was not error to charge the purpose for which the liquor was received in the disjunctive instead of the conjunctive, as the proof of any or all would not change the nature of the offense. As above stated, there is but a single offense under this indictment, and it is wholly immaterial whether the purpose be for storage, distribution or consignment; the penalty is the same, regardless of which one of the purposes the receiver of the liquor may have in mind. See Cunningham v. State, 5 W. Va. 508.\n2. The court found that the members of the regular jury panel were disqualified and directed the sheriff to summon a special venire from a list of names in writing which was prepared by the circuit judge and the sheriff at the commencement of the term. Said list of names contained persons conveniently located. The jurors summoned from the list of names were duly sworn to answer questions touching their qualifications and were found to be qualified, and were duly empaneled to try the case. The appellant moved to quash the special venire, alleging that tire venire had not been selected as required by law; that such special venire did not constitute bystanders in the sense of the statute. The court overruled the motion, and the ruling of the court is made one of the grounds of appellant\u2019s mption for a new trial.\nThe statute authorizes the circuit court to summons by-standers to complete the jury when, for any reason, the jurors and alternates summoned for the regular panel are disqualified. Kirby\u2019s Dig., \u00a7 4511. The list agreed upon by the judge and the sheriff from which jurors were to be selected in this case were by-standers yithin the meaning of the statute. The appellant was not entitled to have any particular jury to try his case. It does not appear that he challenged aijy of the jurors for cause, nor does he make it appear that any of them were biased or prejudiced against him. Therefore, he is not in an attitude to complain of the manner in which the jurors necessary to complete the panel were selected, in the absence of any showing that this method had the effect of bringing into the jury who tried him some one who was prejudiced against him. See McCain v. State, 132 Ark. 497.\nThe appellant did not exhaust his right to peremptorily challenge. He did not show that any juror was disqualified, or biased, or prejudiced against him. Therefore, the record, oil this point, presents no error to the prejudice of appellant. See Bowman v. State, 93 Ark. 168; York v. State, 91 Ark. 582.\n3. The appellant urges that the evidence was not sufficient.\nThere was testimony tending to show that Sheriff Smith made a search of appellant\u2019s house and found on the hack porch about a quart of corn whiskey. He searched thoroughly appellant\u2019s premises, including his dwelling and outhouses, and fields, and garden. He says: \u201cAs I came back up through the garden, right behind his barn, I saw a clay root there with some large weeds laying over it. I thought it looked suspicious. I raised the weeds up and I found this little wooden box with the whiskey in it. There were four quart bottles and one gallon bottle.\u201d Further testifying, he says: \u201cWe found some containers right behind the garage. There were several empty bottles \u2014 quart bottles and pint bottles\u2014 and part of them were dirty, and they looked to be two or three dozen that were clean, as though they were ready to be filled. Found a filling funnel. Fart of the stuff was right behind the garage, and there were some empty jugs or containers there.\u201d\nThere was some other testimony, which it is unnecessary to set out and discuss in detail. There was substantial testimony to sustain the verdict.\n4. The appellant contends that the above evidence of Sheriff Smith is incompetent, because it wa's not shown that the whiskey that Smith found, and the empty jugs and cans, had been received by appellant for storage, distribution or on consignment, or that it had been received for any purpose since the enactment of the law under which appellant was indicted.\nWitnesses Golden and Powers had testified to taking several gallons of whiskey to the house of appellant after the law took effect. They testified that they took the whiskey to appellant\u2019s place in jugs and cans.\nThe testimony of Smith, when taken in connection with the above testimony, was competent, and it presented an .issue for the jury to determine as to whether or not appellant received whiskey for storage, distribution or on consignment in violation of the statute.\nAppellant objected to the refusal of the court to grant certain of his prayers for instruction.\nAppellant presented three instructions, which the court refused to give, and appellant reserved his exceptions to the ruling of the court en masse. At least one-of the instructions was not correct, and the exception can not be considered here. Tiner v. State, 109 Ark. 138.\nThere are no reversible errors in the record, and the judgment is therefore affirmed.\nHART and SMITH, JJ., dissent.", "type": "majority", "author": "WOOD, J." } ], "attorneys": [ "Arthur Cobb, for appellant.", "John D. Arbuckle, Attorney General, and T. W. Campbell, Assistant, for appellee." ], "corrections": "", "head_matter": "Rogers v. State.\nOpinion delivered March 4, 1918.\n1. Liquor \u2014 unlawfully receiving same. \u2014 An indictment held valid which charged that the defendant \u201c did unlawfully receive for storage, distribution or on consignment for another alcoholic liquors * * *\u201d\n2. Trial \u2014 criminal case \u2014 selection of jurors \u2014 by-standers.\u2014In a criminal trial the r\u00e9gular panel was disqualified, and the court directed the sheriff to summon a special venire from a list of names in writing which was prepared by the circuit judge and the sheriff at the commencement of the term. The list was made up of persons conveniently located. Held, the action of the trial judge was not in violation of the statute (Kirby\u2019s Digest, \u00a7 4511) and that the list of names agreed upon by the judge and sheriff were of by-standers within the meaning of the statute.\n3. Liquor \u2014 unlawful receipt. \u2014 The evidence held sufficient to warrant a conviction for the crime of unlawfully receiving liquor.\n4. Evidence \u2014 illegal receipt of liquor. \u2014 In a prosecution for the illegal receipt of liquor for storage, distribution or assignment, certain witnesses testified that they had taken whiskey to appellant\u2019s house in jugs and cans. Held, testimony by another witness that he found whiskey on appellant\u2019s place was competent.\nAppeal from Garland Circuit Court; Scott Wood, Judge;\naffirmed.\nArthur Cobb, for appellant.\n\u2666 1. The demurrer should have been sustained. The indictment is void for duplicity and uncertainty. 37 Ark. 408; 22 Cyc. 338, 380, section 5 and note; 41 S. W. 809 j 67 Id. 397; 6 Id. 388.\n2. The\u2019manner of the selection of the jury was unlawful. Kirby & Castle\u2019s Dig., \u00a7 \u00a7 2518, 5238.\n3. The verdict is against the evidence. The court erred in its instructions.\nJohn D. Arbuckle, Attorney General, and T. W. Campbell, Assistant, for appellee.\n1. The indictment was good under the language of the act. The use of the disjunctive \u201cor\u201d does not render it uncertain. 37 Ark. 408. Is dicta merely. The modern cases permit the disjunctive to be used in cases like this. 134 La. 178; 90 Ya. 92; 135 Ala. 61; 48 Ark. 40; 5 West Ya. 508; 109 N. C. 864; 35 S. W. 543; 6 McLean 182; 10 A. & E. Ene. L. 16 (h); 80 N. C. 472; Wharton Cr. PL & Pr., par. 252; Bishop St. Crimes, par. 244; Kirby \u2019s-Dig., \u00a7 \u00a7 2228-9.\n2. There was no error in empaneling the jury. 93 Ark. 168; 51 Id. 582.\n3. The evidence was sufficient.\n4. There is no error in the instructions. The exceptions were en masse. 109 Ark. 138." }, "file_name": "0085-01", "first_page_order": 109, "last_page_order": 114 }