Public-domain · open source
OpenJurist

42 Ark. 273

Statham v. State

Supreme Court of Arkansas

Decided November 15, 1883

Supreme Court of Arkansas · decided 1883-11-15

Hon. G. S. Cunhingham, Circuit Judge. Gage’s testimony was clearly admissible and it was error to exclude it. This is such a palpable error, and the verdict is such a departure from the law and evidence as to shock one’s sense of justice. 30 Ark., IfiS; 33 lb., 757. 1. The indictment is good, substantially in the words of the one in Witt v. The State, 39 Ark., S16. 2. Though the court may have erred in excluding Gage’s testimony, yet the verdict was right on the whole case.

Cited by 1 later decisions — most recently September 1982

1 state decisions

Key passage — most relied on by later courts

“What influence it might have had upon the jury, if admitted, we do not know. We can not undertake to say that they would have convicted appellant, if the excluded evidence had been admitted. It is deemed safer to award a new trial.”

quoted by 1 later decision, including Christian v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1883-11-15

View the full empirical analysis of this case →

ENGLISH, C. J.

¶1The indictment in this case charged, in substance, that Prank Statham, on the twenty-eighth of November, 1882, in the county of Franklin, and within three miles of the church and school house situated in the town of Ozark, unlawfully did sell to'one T. L. Bolinger one pint of spirituous and intoxicating liquors, when the county court of said county had made an order in compliance with the act of the twenty-first of March, 1881, prohibiting the sale, etc., oí such liquors within three miles of said church and school house.

¶2Defendant moved for a continuance on account of the absence of one Anderson Gage, a material witness for him. The State admitted that if Gage was present he would testify as stated in the motion, and thereupon the court overruled the motion for a continuance.

¶3On the trial, after the State had closed, defendant offered to read in evidence from the motion for contin nance his statement of what-Anderson Gage would swear'if present, under the admission made by the State to avoid a continuance. The court ruled that the testimony of Gage -was incompetent, and excluded it from the jury, and defendant excepted.

¶4The defendant was convicted, refused a néw trial, took a bill of exceptions and appealed.

¶5The only error complained of here, which has any plausibility in it, is the exclusion of the testimony of Gage.

¶6If the testimony of Gage was incompetent, the motion for a continuance should have been overruled on that ground, and not upon the admission made by the State.

¶7The Attorney General does not insist that the testimony of Gage was wholly incompetent, but submits that, if admitted, the State would nevertheless have been entitled to a verdict upon the-whole of the evidence, and therefore its exclusion was an error without prejudice.

¶8The testimony of Gage would have tended to prove that he, and not appellant, made the alleged unlawful sale to Bolinger. "What influence it might have had upon the jury, if admitted, we do not know. We can not undertake to say that they would have convicted appellant, if the excluded evidence had been admitted. It is deemed safer to award a new trial.

¶9Reversed and remanded for a new trial.

/42/ark/273 · .json · Public domain