{ "id": 1873842, "name": "The State vs. Emerick", "name_abbreviation": "State v. Emerick", "decision_date": "1880-05", "docket_number": "", "first_page": "324", "last_page": "327", "citations": [ { "type": "official", "cite": "35 Ark. 324" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "28 Ark., 281", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1884359 ], "opinion_index": 0, "case_paths": [ "/ark/28/0281-01" ] } ], "analysis": { "cardinality": 264, "char_count": 4430, "ocr_confidence": 0.437, "pagerank": { "raw": 9.903706046084735e-08, "percentile": 0.5355777498997045 }, "sha256": "e01f984b53973ad90f9fa3b53a9642d05d9d779145c88249cef86647bfc6ee79", "simhash": "1:a1455aa3688d5438", "word_count": 754 }, "last_updated": "2023-07-14T19:23:57.212153+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The State vs. Emerick." ], "opinions": [ { "text": "English, C. J.\nJohn Emeriek was indicted in the circuit court of Lonoke county for selling intoxicating spirits to a minor. There were two counts in the indictment, in substance as follows:\nThe first count charges that John Emeriek, on, etc., at, etc., \u201c did then and there unlawfully sell intoxicating spirits to Ab. Clements, he, the said Ah. Clements, being then and there under the age of twenty-one years, and the said sale having been then and there made without the consent, in writing, of the parents of the said minor, against the peace,\u201d etc.\nThe second count charged that defendant, on, etc., at, etc., \u201c did then and there unlawfully sell spirituous liquors to a minor, without the consent, in writing, of the parents of said minor, against the peace,\u201d etc.\nThe court sustained a demurrer to the indictment and the state appealed.\nThe statute under which the indictment was drawn follows:\n\u201cIf any person shall sell to or buy for any minor intoxicating spirits of any kind, without the consent or order, in writing, of the parent - or guardian of such minor, he shall, upon conviction thereof, be fined in any sum not less than twenty-five nor more than one hundred dollars.\u201d Gantt\u2019s Digest, sec. 1609.\nOmey v. The State, 28 Ark., 281, is, on principle, like this case. That was an indictment under a statute which provided that no person should sell, or cause to he sold, to a slave, ardent spirits, without the permission of the master, mistress, overseer, or person having charge of the slave.\nThe second count of the indictment charged that defendant sold ardent spirits to a slave without permission of his master, hut did not negative the permission of the mistress, overseer, etc. The court held the count bad. The Chief Justice, who delivered the opinion of the court, said; \u201cIt does not make out the offense under the statute to charge that the ardent spirits were sold to the slave without permission of the master, for the permission may be given by the mistress, overseer, or person having charge of the negro; and it is more consistent with the rules of criminal pleading for the indictment to negative the permission of all persons who are designated in the statute as authorized to give it.\u201d\nIn this case neither count negatives the consent or oi\u2019der, in writing, of the guardian of the minor, nor does it allege that the minor had a parent and no guardian.\nAll that is alleged in the indictment may be true, and yet the accused may have been guilty of no offense against the statute. It is better pleading to negativethe consent or order, in writing, of parent or guardian,- in the language of the statute.\nIn The State v. Shoemaker, 4 Indiana, 100, which was an indictment under a similar statute, the sale was alleged to have been made to the minor \u201cwithout the consent \u00f3f his parent,\u201d the language of the statute, omitting the words of our statute, \u201cor guardian.\u201d\nThe court said: \u201cIt is possible that one, or both, of the minor\u2019s parents are dead \u2014 possible that he had a guardian. But the presumption in favor of the parent being alive and competent to discharge the duties which that position imposes, may be fairly indulged. It is not necessary .that\u2019 the indictment should negative every conceivable fact which might change the character of the offense,\u201d etc., and the.indictment was held good.\nWith all due respect to the supreme court of Indiana,, we think it safer not to indulge in presumptions, unless-they he based upon well-established legal rules, to uphold indictments. Every person is presumed to be innocent of crime, until the contrary is alleged and proven. And if the indictment is so framed that all its allegations may be true and yet the accused guilty of no offense, it is safer to hold it bad, on demurrer.\nIt is simple and easy for prosecuting attorneys, in drafting indictments for misdemeanors under the statutes, to follow their language and negative the existence of any fact mentioned in the enacting clause which would make the act innocent charged to be criminal.\nAffirmed.", "type": "majority", "author": "English, C. J." } ], "attorneys": [ "Henderson, Attorney General, for appellant.", "Hcdlam, contra." ], "corrections": "", "head_matter": "The State vs. Emerick.\nCbiminal Pleading : Indictment for selling liquor to minors.\nAn. indictment charging the selling of intoxicating spirits to a minor, without his parents' consent, in writing, and not negativing the consent of his guardian, is bad, on demurrer.\nAPPEAL from Lonoke Circuit Court.\nHon. J. W. Martin, Circuit Judge.\nHenderson, Attorney General, for appellant.\nHcdlam, contra." }, "file_name": "0324-01", "first_page_order": 322, "last_page_order": 325 }