Citation Numbers: 143 Ark. 140
Judges: Hart
Filed Date: 3/29/1920
Status: Precedential
Modified Date: 9/7/2022
(after stating the facts). The first assignment of error is that the court erred in instructing the jury as follows:
“3. If you believe from the evidence beyond a reasonable doubt that the witness D.alby gave the defendant money with which to purchase liquor and that the defendant went away and brought back and delivered to witness Dalby intoxicating liquor, and if you so find you will convict him; but if you find'that the witness gave the defendant money and told him to go to a certain place and purchase the liquor, and the defendant went to such place and got the whiskey from the party and from the place directed, then the defendant would be simply a messenger for witness Dalby, and would not be guilty of selling intoxicating liquor, but if in any instance the witness Dalby gave him money with which to purchase whiskey and did not direct him where to get it, and that the defendant brought back and delivered the whiskey to said Dalby, he would be guilty of a sale, although you may find that the witness sent him after the whiskey and gave him the money to pay for it, and if you so believe beyond a reasonable doubt, you will convict him.”
The .Attorney G-eneral confesses error, and the confession is well taken. The court erred in telling the jury as a matter of law that if Dalby gave the defendant money with which to purchase liquor for him and the defendant went away and brought back and delivered to Dalby intoxicating liquor, the jury should convict him.
The guilt or innocence of Lindsey depended upon whether or not he in good faith acted only for the buyer in the purchase of the liquor or merely pretended to act for the buyer as a subterfuge to evade the law. Whether Lindsey acted solely as agent for Dalby in buying the whiskey, or whether his claim of agency was merely a device to conceal a sale by himself, was á question of fact for the jury. Ellis v. State, 133 Ark. 540, and Snead v. State, 134 Ark. 303.
The defendant asked two instructions. One of which is in all essential respects similar to the instruction asked in the Snead case; and the other is similar to that asked in the Ellis case, above cited. In those cases the court said that the defendant had a right to have his theory of the case submitted to the jury and that the trial court erred in refusing to give the instruction set forth in the opinion. The instruction asked for in the Ellis case and the one in the Snead case covered the same ground. Therefore it was not necessary for the court to give both instructions, but the court should have given one of them in order that the defendant’s theory of the case might be given to the jury.
For the errors indicated, the judgment must be reversed and the cause remanded for a new trial.