Kinnanne v. State , 106 Ark. 337 ( 1913 )

Hart, J.

(after stating the facts). It is first contended by counsel for defendant that the State failed to show a sale of intoxicating liquor. It is true the witness did not state in express terms that he bought intoxicating liquor. He did state, however, that he bought liquor out of a bar room on the boat, and that he was not looking for water, but that he was looking for firewater, and that many other persons got on the boat at Osceola and were buying liquors at the bar. The jury had a right to use its common sense,, and in view of the surrounding circumstances, were warranted in,finding that the liquor sold was intoxicating.

“Both intoxicating and nonintoxicating liquors are included within the meaning of this word. In its ordinary acceptation, however, it is understood as implying those liquors which are of an intoxicating nature; that is, such as are ordinarily used as a beverage and which tend to and will intoxicate.” Joyce on Intoxicating Liquors, § 2.

In the case of Long v. State, 94 Ark. 570, the court held: “A conviction of gaming will be sustained by evidence that defendants and three others were seen playing cards, and that one of the players was seen to pass something across the table which the witness took to be a bill, as it is a matter of common knowledge that all forms of paper money are commonly called ‘bills.’ ”

So, here, the jury were warranted in finding that the witness used liquor in the ordinary sense of the word, and the evidence justified the verdict.

It is next contended by counsel for defendant that the proof as to the manner in which the defendant sold liquor upon the steamboat was not sufficient to show that the sale was made by a device commonly known as a “blind tiger,” within the meaning of section 5140, of Knrby’s Digest. The testimony of the prosecuting witness showed that the boat landed near Osceola and took on a crowd of people; that he was not charged any fare and did not see any one else pay any fare; that the boat then began to pull out toward the middle of the river, and after a short time, defendant began to sell liquor to any one who wished to buy it; that the boat then pulled back to a landing about a mile and a half north of Osceola and discharged its passengers; that the boat pretended to be a carrier of freight and passengers. It was the evident purpose of the persons operating the boat to escape the jurisdiction of the Arkansas courts and to clandestinely make a sale of intoxicating liquors. We think the facts and circumstances adduced in evidence show that the sale was by a device within the meaning of the statute. Glass v. State, 45 Ark. 173; Brownson v. State, 93 Ark. 20.

Finally, it is insisted, by counsel for the defendant that the court erred in its instruction to the jury on the question of the boundary line between the States of Arkansas and Tennessee. The contention of defendant has been settled adversely to him in the case of Kinnanne v. State, 106 Ark. 286, in which an opinion is this day handed down.

The judgment will be affirmed.