Galloway v. State , 60 Ark. 362 ( 1895 )

Bunn, C. J.

(after stating the facts.) The charge in the indictment constituted a public offense, and, unless extraneous matter constituting a good defense could be shown, the proof of the allegations in the indictment would justify the conviction. So the motion in arrest was properly overruled.

The case really turns upon the construction to be given to the act entitled “An act to regulate the sale of wine in the State of Arkansas,” approved April 3, 1889, and digested in Sand. & H. Dig. as sections 4852, 4853, 4854 and 4855, the first two only being necessary to consider in this case.

The original act will be found in the published Acts of 1889, pages 95, 96. Certain words have been eliminated from the first and second sections of the act, to conform to the decision of this court in the case of Deschamps v. State, 53 Ark. 490, the eliminated words having a reference solely to the place of sale, and therefore not affecting the issues in this case.

The State contends that this act of 1889 repeals, or takes the place of, all other acts on the special subject of wine selling in this State, especially the 15th section of the special act approved March 8, 1879, and its contention seems to us to be well founded, not with-, standing the repealing act contains no repealing clause.

The first section of the act of 1889 (section 4852 of the Digest) is expressed in these words, after elimination as aforesaid, to-wit: “That it shall be unlawful for any person to sell wine in this State, except as authorized in this act.” The third section excuses regularly licensed liquor dealers from the operation of this act. The second section of the act, with the words stricken out as aforesaid, is section 4853 of Sand & H. Digest, and is the important one as designating the persons selling wines in quantities not less than one quart, who are protected in such selling without a license. It will be noticed that when the general assembly, by special act, has prohibited the sale of wine in any district or locality, the act affords no protection to the seller under any circumstances. Section 2 provides: “Any person who grows or raises grapes or berries may make wine thereof, and sell the same in quantities not less than one quart; such person (the person who grows or raises grapes or berries and makes wine therefrom) may also sell the wine of his own make in any place where the sale of intoxicating liquors is licensed and authorized by law, in quantities not less than one quart.

By the agreed statement of facts — the sole evidence in this case — the defendant does not appear to have grown or raised the berries from which the wine was made, the selling of which he is charged with in the indictment. He is therefore not entitled to the immunities of the act in making such sale.

Again, “peaches” are not named in the act as one of the fruits from which wine may be made, and the same sold by the grower and manufacturer, under the protection of the act. The defendant therefore' cannot claim the benefits of the act, in respect to his sale of this character of wine. His defense, therefore, is unavailable, and the judgment against him is affirmed.