Johnson v. City of Benton
Johnson v. City of Benton
Opinion of the Court
Appellant, Bertha Johnson, was found guilty by a Saline County jury of possessing untaxed liquor, and her punishment was assessed at a fine of $500.00, and six months in jail. From the judgment so entered, appellant brings this appeal.
It is first urged that the evidence,was not sufficient to sustain the conviction. Proof developed on the part of the city reflected that Patrolman Blumbelow, of the Benton Police Force, found a half-gallon of untaxed (moonshine) whiskey in a storeroom, located approximately twenty feet to the rear of appellant’s residence. According to his testimony, this outbuilding was the closest building to her house; it was located on a portion of the property occupied by appellant; the outbuilding and appellant’s home were enclosed within a fence, and these buildings were the only two inside the fence.
Appellant admitted that she lived in the house on the property in question, but, with reference to the outbuilding, testified, “I haven’t had anything to do with that building in over two years.” She stated that she rented the house in which she lived, and that she did not have any liquor in her possession; further, that she had formerly stored soda water
Testimony was also offered under Ark. Stat. Ann. § 48-940 (Repl. 1964) that appellant bore the reputation of bootlegging. We think the evidence was sufficient to sustain the jury verdict.
It is asserted that error was committed because the whiskey was not introduced into evidence. This question seems to be raised for the first time here in this court, but at any rate, the contention is without merit. In the case of Byrd v. State, 219 P. 2d 1027, the Criminal Court of Appeals of Oklahoma said:
“The defendant further contends that it was error for the trial court to deny his request that the seized liquor be produced. This contention has been held to be of no merit in State v. Gragg, 71 Okl. Cr. 213, 110 P. 2d 321, 322, wherein it was said: ‘Where one is charged with the unlawful possession of intoxicating liquor, it is not necessary for the State to produce the identical liquor as alleged in the information, before a conviction may be had for the unlawful possession. This is a question of fact to be decided by the court or jury.’ ”
Here, there was not even a request during the trial that the seized liquor be produced. See also Workman v. State, 175 P. 2d 381.
It is argued that the search of the storehouse was unlawful. This search was conducted under the authority of a search warrant issued by the municipal judge after an affidavit for the warrant had been presented by Officer McClintock.
Appellant alleges that Chief Steed’s mention of prior searches of appellant’s premises, and his testimony relative to her reputation as a bootlegger were prejudicial. No objections were made to this testimony during the trial, nor is there any mention of it in the motion for new trial. Accordingly it is not necessary that we discuss these questions. Tiner v. State, 239 Ark. 819, 394 S. W. 2d 608.
On the whole case, we find no prejudicial error.
Affirmed.
Appellant testified that she had operated a cafe, but it “didn’t succeed.”
The instant case was tried in October, 1965.
Appellant objected to the introduction of the search warrant, but upon being overruled, saved no exceptions to the ruling of the court.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.