Bryant v. State, 62 Ark. 459 (1896)

June 6, 1896 · Arkansas Supreme Court

62 Ark. 459

Bryant v. State.

Opinion delivered June 6, 1896.

Liquors — Ieeegae Saee — Variance as to Peace oe Saee. — An information charging the unlawful sale of liquors in a particular building will not be sustained by proof of an illegal sale of liquors in any other place.

Appeal from Green Circuit Court.

Felix G. Taylor, Judge.

John Bryant was tried and convicted before a justice of the peace on an information filed by the prosecuting attorney, alleging that, being the owner of the old Baird Saloon building in the town of Paragould, in the county of Greene and state of Arkansas, he “did unlawfully sell and give away, and cause to be sold and given away, and keep for sale and to be given away, and allow to be kept for sale and to be given away, in said building, ardent, vinous, malt, fermented, and intoxicating liquors, without first having obtained a license,” etc. He appealed to the circuit court, with similar result, and thereupon appealed to this court.

The appellant pro se.

No venue was proved in this case. Nor was it proved, as alleged, that any sale of liquor was made in the “Baird Saloon building.” Having so alleged, the state must prove it.

E. B. Kinsworthy, .Attorney General, for appellee.

Courts take judicial notice of the locations of towns, and the boundaries of counties. 12 Am. &. Eng. Enc. Haw., p. 169. The evidence shows that the sheriff gave Davis the money to buy the whiskey, and in fifteen minutes he returned with the whiskey. It was an impossibility for the witness to have gone out of the county within the time. *

Battle, J.

The evidence adduced in the trial of the appellant in the circuit court failed to show that he sold and gave away, and caused to be sold and given away, and kept for sale and to be given away, and allowed to be kept for sale and to be given away, in the Baird Saloon building, in the town of Paragould, in the county of Greene and State of Arkansas, ardent, vinous, malt, fermented, and intoxicating liquors, and thereby failed to prove that he was guilty of the offense charged against him. Having alleged that the liquors were sold and given away, and were kept for sale and to be given away, in the Baird Saloon building, it devolved upon the state to prove it in order to convict. Proof of sale and gift, and keeping for sale and gift, in any other place would not be sufficient. Shover v. State, 10 Ark. 259; State v. Anderson, 30 Ark. 131.

Reversed and remanded.