{ "id": 8721052, "name": "Tumbleson v. State", "name_abbreviation": "Tumbleson v. State", "decision_date": "1923-06-04", "docket_number": "", "first_page": "266", "last_page": "270", "citations": [ { "type": "official", "cite": "159 Ark. 266" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "151 Ark. 458", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1366124 ], "opinion_index": -1, "case_paths": [ "/ark/151/0458-01" ] }, { "cite": "156 Ark. 340", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1358473 ], "opinion_index": -1, "case_paths": [ "/ark/156/0340-01" ] }, { "cite": "151 Ark. 423", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1366087 ], "opinion_index": 0, "case_paths": [ "/ark/151/0423-01" ] }, { "cite": "151 Ark. 458", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1366124 ], "opinion_index": 0, "case_paths": [ "/ark/151/0458-01" ] }, { "cite": "156 Ark. 340", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1358473 ], "opinion_index": 0, "case_paths": [ "/ark/156/0340-01" ] } ], "analysis": { "cardinality": 351, "char_count": 7389, "ocr_confidence": 0.465, "pagerank": { "raw": 9.505882454708161e-08, "percentile": 0.5231818534594102 }, "sha256": "0097a66bb48bfd41fabc3419986ee7691276c9ef1d9ac56405136c4007de5a95", "simhash": "1:d76e8f688df4b47c", "word_count": 1269 }, "last_updated": "2023-07-14T15:08:10.395675+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Tumbleson v. State." ], "opinions": [ { "text": "McCulloch, C. J.\nAppellant was convicted on the - following indictment (omitting caption) :\n-\u2018\u2018The said Ed Tumbleson, on the 3rd day of July, 1922, in the county and-district aforesaid, did unlawfully and feloniously possess and have in his possession a certain still, worm and boiler for the purpose and intention of using the same for the production of distilled spirits and for the distillation and manufacture of alcoholic and intoxicating liquors, against the peace and dignity- of - the State of Arkansas.\u201d\nThe indictment was framed under the second section of act No. 324 of the General Assembly of 1921 (Acts 1921, p. 372). There was a demurrer to the indictment, which the court overruled, and on the trial of the-.case the State introduced testimony tending to show that there were found on appellant\u2019s farm, near Ms house, a copper stillworm, a five-gallon metal oil can, and a -lot of mash. These articles were not connected together so as to constitute a still; but were found in close proximity, and there were indications that a still had been operated there.\nThe evidence was sufficient to sustain a finding that appellant had set up and operated an .improvised distillery for the purpose of manufacturing distilled spirits. McGarity v. State, 151 Ark. 423.\nThe most serious question in the case. is whether the. language of the indictment is sufficient to charge an offense under the statute, and the Attorney General confesses error on this point.\nIt is clear that the indictment is not sufficient, under the first part of the section mentioned above, for the reason that there is no allegation that the still or still-worm was not registered. In order to. constitute an offense under that part of the section there must be such an allegation. McIntyre v. State, 151 Ark. 458.\nThe language of the indictment is somewhat confused by the use of the comma between the words \u201cstill\u201d and \u201cworm,\u201d but it is evident that the pleader did not intend to use .the word \u201cstill\u201d separately from the word \u201cworm\u201d so as to charge the possession of a complete still. It is clear that the meaning was to charge the possession of a stillworm and boiler.\nThe further question arises, then, whether or not \u2022the language of the indictment is sufficient to charge the offense of setting up a still, or a substitute for a still, within the meaning of the latter part of section 2 of the statute. In the recent case of Hodgkiss v. State, 156 Ark. 340, we undertook to make an analysis of this part of the. statute, and in doing so we said:\n\u201cThe latter part of section 2 relates to the setting up of the apparatus for use as a distillery, and the thing or things set un must be susceptible of that use. A stillworm cannot alone be used as a distillery, neither can a \u2018kettle, waslipot, metal tank, or any other vessel\u2019 alone be so used. The'language relates to a complete distillery, technically speaking, or to any substitute therefor, \u2018which, after being set up, may be used for the production of distilled spirits.\u2019 It will be observed that the words, \u2018any stillworm or substitute therefor,\u2019 are conjunctively joined with the words \u2018a still or substitute therefor, \u2019 which bears out the interpretation that, in order to constitute an offense under this part of the statute, the apparatus set up must be complete so that it may be used for the production of distilled spirits. This part of section 2 of the statute, and section 3 thereof, overlaps to some extent in effect, but an indictment may be framed in the language of either. The indictment in this case was intended to state an offense under the latter part of section 2, but it merely charges the setting up of \u2018a certain trough as substitute for a still, for the purpose,\u2019 etc. It does not charge the setting up of a worm in connection with the still, nor that the trough was a thing \u2018which, after being set up, may be used for- the production of distilled spirits.\u2019 A trough may be fit for use as a part of the apparatus for the distillation of spirits, but it cannot alone be used for that purpose.\u201d\nIt is not charged, in so many words, in the indictment that the accused set up a still, but the charge is that he did \u201cpossess and have in his possession a certain still, worm and boiler for the purpose and intention of using the same for the production of distilled spirits.\u201d Nor is it charged in the indictment that the stillworm and boiler were contrivances \u201cwhich, after being set up, may be used for the production of distilled spirits.\u201d Under this part of the statute the indictment must either charge the setting up of a still, or it must charge the settingup of substituted contrivances or articles \u201cwhich, after being set' up, may be used for the production of distilled spirits.'\u201d Of course,' where the charge in the indictment is that a'still is set up for the purpose of producing distilled spirits, it is unnecessary to allege that it is such a contrivance as may he used for that purpose, for the definition of the word \u201cstill\u201d sufficiently indicates its use; hut where there is an attempt to charge the setting up of a substitute, then there must be a charge that such substitute is susceptible of use as a still, or, in the language of the statute, \u201cafter being set up, may be used for the production of distilled spirits.\u201d\nThis indictment neither charges that a still was set up nor such a substitute as could be used in the production of distilled spirits. For that reason the indictment is insufficient, and the court should have sustained appellant\u2019s demurrer.\nReversed and remanded, with directions to sustain the demurrer, and for such further proceedings as the court may deem advisable.", "type": "majority", "author": "McCulloch, C. J." } ], "attorneys": [ "I. S'. Simmons, for appellant.", "J. S. Utley, Attorney General, John L. Carter and Wm. T. Hammock, Assistants, for appellee. . ," ], "corrections": "", "head_matter": "Tumbleson v. State.\nOpinion delivered June 4, 1923.\nIntoxicating liquoks \u2014 indictment for setting up substitute for ' still. \u2014 'An indictment. under Acts 1921, No. 324, \u00a7 2, which alleges -that defendant \u201cdid unlawfully- and feloniously possess and have in his possession a certain still, worm and boiler for the purpose and intention of using the same for the production of distilled spirits,\u201d etc., is demurrable for failure to allege that . defendant set up either a still or such a substitute as could he used in the production of distilled spirits.\nAppeal from Franklin Circuit Court, Ozark District; James Cochran, Judge;\nreversed.\nI. S'. Simmons, for appellant.\nMotion to require the State to elect should have been sustained. Three offenses are attempted to he charged in the indictment. The court erred in overruling \u2022 the demurrer. The material elements of neither offense are alleged. Hoclgkiss v. State, 156 Ark. 340. Error was committed in refusing to give instructions 1, 2, 3, 4, 5 and 6, requested by appellant. Especially should number 1, directing a verdict, have been given. The court erred in dictating instructions numbered 1, 2, 3, 4 and 5, which were taken in shorthand, which is not a compliance with the law requiring written instructions. Sec. 1292, Crawford .& Moses\u2019 Digest; \u00a7 23, art. 7, Constitution 1874. The court erred in giving in change \u00a7 1 of Act 324 in connection with the reading of the indictment.\nJ. S. Utley, Attorney General, John L. Carter and Wm. T. Hammock, Assistants, for appellee. . ,\n' The Attorney General confesses error; the indictment is fatally defective, and the demurrer should have been sustained. 151 Ark. 458. The judgment should be reversed, and cause remanded." }, "file_name": "0266-01", "first_page_order": 292, "last_page_order": 296 }