Woods v. State , 114 Ark. 391 ( 1914 )

Kirby, J.

Appellant was ' convicted of the offense of selling intoxicating liquor without license upon a directed verdict, and appealed from the judgment.

The State’s testimony tended to show that one Mc-Nutt, who was in the employ of the Anti-Saloon League ■as a detective, went to the appellant in Little Eiver County and furnished him money with which to buy the whiskey, after first asking him if he knew where any could be procured, and that defendant replied that he did and took the money and purchased the whiskey and delivered it to McNutt. McNutt admits that at the time he gave appellant the money he told him where to go and from .whom to purchase the whiskey, saying that he had already before talked with appellant and ascertained from him that the party to whom he directed him to go was selling whiskey. Appellant testified that McNutt came to Mm, asked him if he knew where he could buy any whiskey or who was selling wMskey, to which he replied that he did not; that McNutt then gave Mm the money and told him to go over to Graham’s, who was selling liquor, and purchase some for Mm, which he did.

If the State’s testimony was undisputed, the appellant would have been guilty of violating the law by a sale of the liquor, and the verdict properly directed within the ■authority of Bobo v. State, 105 Ark. 462. The testimony is not uneontradieted, however, the appellant having sworn positively that he told McNutt that he did not know of any one who was .selling liquor, nor where any could be bought; that thereupon the detective gave him the money and told him the names of the parties who were selling liquor, and asked him to go and buy it, which he did, and that he had no interest whatever in the liquors nor the sale thereof.

Under Ms own testimony he was gmilty, at most, of procuring or purchasing the liquor for another, under section 5135, Kirby’s Digest, for which he could not be convicted under ian indictment charging the violation of the law by a sale thereof.

For the error in directing the verdict, the judgment is reversed and the cause remanded for a new trial.