ration, firm, or individual to transport, shiping, and conveying intoxicating beverages or carry, by any means whatsoever, with or without hire, or cost, the same to be done, from any point without this state to any point within the state, or from place to place within the state, whether intended for personal use or otherwise," any intoxicating liquors, etc., and the words "to any person," etc., were left out of the statute.

from one county to another within the state of Tennessee. The court held that the two acts relating to the same subject-matter and being in pari materia should be harmonized, and that effect should be given to the various provisions of each. In the application of this rule of construction the court held that the effect of chapter 3 is to prohibit shipments of liquor to same extent only as such shipments are prohibited by chapter 1.

Section 2 provides for the venue in indictments returned under section 1 of chapter 3. It provides, in effect, that the circuit court in the county to which shipments are made, or in which deliveries of any intoxicants are made, shall have jurisdiction to indict and try violators of the statute. In discussing this section the court said:

"There is neither 'shipment' nor 'delivery' in case of one's carriage of one's own property. To ship or to deliver implies a change of custody. Either shipment or delivery necessitates a transfer of possession. Section 2 therefore can have no application to personal transportation."

As bearing on the question here presented, and as tending to support the construction we have placed upon the act under consideration, we refer to People v. Bola (Mich.) 163 N. W. 893, and Bird v. State, 131 Tenn. 516, 175 S. W. 554, Ann. Cas. 1917A, 634. The Legislature of Michigan in 1913 (Pub. Acts, No. 381, § 2) made it unlawful for any person "to consign, ship or transport in any manner whatsoever, or to deliver" intoxicating liquors to any person in any county where the sale of such liquors is prohibited, or for any person residing in such prohibited territory to receive any such liquors unless labeled as required by the statute. Bola drove an automobile from the territory where the sale of liquor was prohibited into another part of the state where liquors could be legally purchased. He there purchased some liquors, and, without labeling them as required by the statute, carried them to his home in the prohibited territory. He was indicted and convicted in the lower court under the section of the statute just referred to. The Supreme Court reversed the judg- be given to subsection 1 of section 9, the ment and discharged the accused on the ground that he was neither consignor nor consignee of the intoxicating liquors, and that the section of the statute had no application to him under the facts of the case.

The facts in the Tennessee case are that at its 1913 session (Acts 1913 [2d Ex. Sess.]) the Legislature passed two acts whose general purpose was to regulate the shipment of intoxicating liquors. The first act is called in the opinion chapter 3, and the later act is designated as chapter 1. The first act of chapter 3 undertook to deal with the shipments from one county to another. The first section of it reads as follows:

"Section 1. Be it enacted by the General Assembly of the state of Tennessee, that it shall be unlawful for any person, firm, or corporation to ship or convey whiskey, wine, ale, beer, and all other intoxicants, from one county, to another county in this state."

The later act or chapter 1 deals with shipments from other states into the state, and also shipments from point to point in Tennessee, regardless of county lines. Section 1 is as follows:

"Section 1. Be it enacted by the General Assembly of the state of Tennessee, that it shall be unlawful for any person, firm, or corporation to ship, carry, transport, or convey any intoxicating liquor into this state, or from one point to another within this State, for the purpose of delivery, or to deliver the same to any person, firm, company, or corporation within the state, except as hereinafter provided."

After further discussion the court said with regard to section 1 of chapter 1 the following:

"It is to be observed, further, that section 1 declares merely that it shall be unlawful to ship, of delivery or to deliver the same. There is no carry, etc., intoxicating liquors for the purpose prohibition against personal carriage."

After a discussion of the construction to

court said:

"It results, therefore, that neither chapter 1 nor chapter 3 of the Acts of the Second Extra Session of the Legislature of 1913 are effective to prevent an individual from carrying his own to another. The two acts do prohibit the shipintoxicating liquors from one point in this state ment of liquor from one point in this state to another, and make it unlawful for any person, firm, or corporation to transport for another liquor from one point in this state to another, or to make delivery to another, except under the conditions prescribed in the subsections of section 9 of chapter 1."

Thus it will be seen that these two cases tend to support the construction we have placed upon our own act. But the language of the act is plain and unambiguous, and we rest the construction we have placed upon it upon the language used by the lawmakers in framing it. We are of the opinion that, when the language used in the act is given its plain and ordinary meaning, that there is no prohibition of the personal transportation of an individual's own liquors from another state into this state.

Therefore the motion for rehearing will be denied.

BANKS v. STATE. (No. 239.) (Supreme Court of Arkansas. March 18, 1918.) 1. LARCENY 65-EVIDENCE-SUFFICIENCY. ing meat from a butcher shop, evidence held to In a prosecution for grand larceny for steal

Indictments were returned against Bird

2. CRIMINAL LAW DEFECTS-CURE.

Instruction defining larceny as the felonious stealing, taking, "or" carrying away personal property, held not misleading, in view of another instruction given.

3. CRIMINAL LAW OBJECTIONS.

844(1)-INSTRUCTIONSErroneous definition of larceny, if error, held not amenable to general objection.

4. LARCENY 17-"ASPORTATION."

823(4)-INSTRUCTIONS- city marshal and they found the meat which
appellant had left in the refrigerator stacked
on the floor near the hole which had been
The screens at the
cut in the front screen.
back windows were pulled off. Boxes were
stacked on the outside so that one could step
on them and climb through one of the
windows. They found buggy and horse
tracks at the back end of the shop and fol-
them
and
lowed
to appellant's house
found the buggy with the shafts on the fence
some distance from the shed and the horse
in the lot. The buggy was an old runabout
affair with the rubber tire worn off one
wheel. The buggy tracks and horse tracks
corresponded with those made by appel-
lant's horse and buggy. Appellant denied
that he had been in the shop during the night,
and stated that after he returned from the
slaughterhouse, where he had slaughtered

Carrying meat from the owner's refrigerator
to the front door and placing it near a hole in
the screen, with intent to steal and carry it
away, constituted asportation within the law.
[Ed. Note. For other definitions, see Words
and Phrases, First and Second Series, Asporta-
tion.]

5. CRIMINAL LAW 938(1)-NEW TRIAL. Newly discovered evidence in prosecution for grand larceny held not to require new trial. Appeal from Circuit Court, Crawford County; James Cochran, Judge.

Ed Banks was convicted of grand larceny, and

he appeals. Affirmed.

J. V. Bourland, of Ft. Smith, for appellant. Jno. D. Arbuckle, Atty. Gen., and T. W. Campbell, Asst. Atty. Gen., for the State.

HUMPHREYS, J. Appellant was indicted, tried, and convicted of the crime of grand larceny in the Crawford circuit court. From the judgment of conviction an appeal has been prosecuted to this court.

[1] It is first insisted that the evidence failed to connect appellant with the crime. The facts, in substance, are as follows: Ap pellant had been in the employ of W. M. Garrett, who was in the meat business on Main street in Van Buren, for many years. Appellant's duties were to clean up the shop On and slaughter animals for the market. November 16, 1917, he went to the country for two cattle, but returned too late to slaughter them that afternoon. He slaughtered them that night. He came to the shop about 7 o'clock p. m., and there was evidence tending to show that he helped Garrett put some cured hams and bacon, of the value of $33, in the refrigerator. The front entrance consisted of double doors, which were left open that night, and double screens, which were fastened with chain and lock. There were two windows in the back end of the shop, some distance from the ground, covered with screens hinged at the top and hooked at the bottom on the inside. The windows had weights, and the lower sash could be raised and the upper sash lowered. During the night, about 1 o'clock a. m., Barcus Hornberger, who had come in on a late train and had with him a lantern, discovered that a hole, large enough to get meat out, had been cut near the floor in the front screen to Garrett's shop. He heard a noise in the back end of the shop. He saw a buggy and a horse standing at the back end of the shop, which he examined and afterwards identified as belonging to appellant. After he had gotten partly across the street, he noticed some one driving the buggy away. He reported the matter to Garrett, who returned with the

the cattle, he got home about 11:30 and re

mained there. We think the evidence suffi

cient to support a finding that appellant was the author of the crime.

[2] It is insisted that instruction No. 4, given by the court, is erroneous, for the reason that the word "or," used between the words "taking" and "carrying," rendered the instruction misleading. Instruction No. 4 is as follows:

"Larceny is the felonious stealing, taking, or carrying away personal property of another."

When read in connection with instruction No. 7 given by the court, it could not be misleading. Instruction No. 7 was as follows:

"If defendant, Ed Banks, moved the property described in the indictment, with the felonious intent to take and steal the same, from the place where the owner, Garrett, left it to the door of the butcher shop, with the intent to carry it away, and was then frightened away and left the property at the door, he would be guilty of larceny."

[3] The two instructions clearly point out that there must have been a caption and asportation in order to convict appellant. The objection urged, however, to instruction No. 4, is aimed at the phraseology more than the substance thereof, and the error, if any, should have been pointed out to the trial judge specifically. It is not an error that can be reached by general objection.

[4] It is insisted that instruction No. 7, given by the court, is erroneous, for the reason that the carrying of the meat from the refrigerator to the front door and placing it near the hole cut in the screen is not an asportation within the meaning of the law. It is said that appellant could not have been guilty of the crime until he carried it beyond the walls of the house. In other words, that appellant's dominion over the property was not complete unless he had carried it out of the building. We cannot agree with learned counsel in this contention. The authorities cited by the Attorney General are in point and hold to the contrary. 1 Wharton, Criminal Law (10th Ed.) § 923; State v. Hecox, 83 Mo. 531; Garris v. State, 35 Ga. 247; State v. Craige, 89 N. C. 475, 45 Am. Rep. 698.

No error appearing in the record, the judg- tle Rock against Charles H. Jeuryens and

was there told that the United States did not own any land on the river front. He then made application to purchase the land from the state, but was told by the commissioner of state lands that there was no record showing ownership in the state. He applied to the mayor of the city, but was told by that officer that the city did not own the land. Thereupon Jeuryens proceeded to make certain improvements of a more permanent nature. He caused the land to be placed upon the taxbooks, and paid the taxes thereon continuously to and including the year 1914. He allowed the land to forfeit and sell for the nonpayment of the 1915 taxes on account of the controversy which had then arisen over the title. The city brought ejectment for this land against Jeuryens; and so did the state. The causes were transferred to equity and consolidated and tried together, and a decree was rendered in favor of the defendant Jeuryens.

Much of the interesting history contained in the record in this case is recited in the opinion of this court in the case of Beebe v. Little Rock, 68 Ark. 39, 56 S. W. 791. So far as that history is relevant here, the facts may be summarized as follows: On February 2, 1822, William Russell and others, who were known as the original proprietors of Little Rock, filed a plat and bill of assurance of the town of Little Rock, which was duly recorded in the records provided for such purposes, according to which Water street extended to the water's edge. This is the street which runs between the old capitol square and the Arkansas river. It transpired that the parties who filed this plat and bill of assurance did not have the title to the streets there dedicated and the property there subdivided into blocks and lots. Later

tween the old capitol square and the Arkansas river. The river is north of the capitol square. There is here a high bluff, from which a commanding view of the Arkansas river is had, and it appears, from the testimony in the record, that the beauty of its location was one of the deciding factors in its selection as the site for the erection of the capital of the territory of Arkansas. Jeuryens testified that a line drawn from the top of the bluff to the water's edge would be at an angle of about 45 degrees, although part of the bluff was perpendicular and other portions comparatively level. At this point there stood out in the river a large rock known as the old "Blue Rock," which for many years had been used by swimmers bathing in the river, and adjacent to this rock, and connecting it with the main shore or bluff, was a small strip of land. Jeuryens says the land, at the time, was low and flat, and was covered with a lot of willows and bushes: that there were, at the time, several big cottonwood trees and a lot of willows along the edge of the bank and "a lot of little scrub willows," together with some cockle-burs and the ordinary weeds and grass and a few bushes. The annual overflows covered the land when the river reached a stage of 18 or 20 feet on the gauge. Jeuryens bought a houseboat, which he used until 1898, when, after the overflow of that year, he beached it behind a large cottonwood tree, the overflow of that year having floated the boat within 2 feet of this tree. Two subsequent overflows attained a sufficient height to get in the boat after it was beached. He bought a fish dock, and caught and sold fish. He also built boats and rented them out. The first structure erected by him on the land was a toolhouse 10 by 14 feet. At this time the sewer from the state house ran across a patent from the United States was issued the land and emptied into the river. The to Roswell Beebe, which included all the city sewer down Ashley street also ran across land described in the plat and bill of assurthe land and emptied into the river. At first ance filed by Russell and others. This patJeuryens anchored his boat behind the old ent issued upon the condition precedent, howBlue Rock, where there was an eddy. Later ever, that Beebe would execute and record he drove piling around the rock and leveled a covenant, agreeing to quitclaim to the city up the banks and commenced the processes of Little Rock, the state of Arkansas, and to of filling in this land. Posts and piling were any and all persons holding portions of said driven around the water's edge, and pickets land under a regular chain of title from the were attached to confine the earth which original proprietors of Little Rock. This washed down from the bluff and the deposits covenant was executed on July 6, 1838, and of silt from the annual overflows, together was construed by this court in the case of with the earth which was hauled and dump- Beebe v. Little Rock, supra. In that case ed from time to time, all of which was lev- it was decided that there was an acceptance, eled up until the land had been built up both under the common law and in fact safely above any overflow. During the third (there being no statute on the subject) of the year of his occupancy Jeuryens commenced streets shown on the plat of the original removing sand from the river at this point proprietors. It was also pointed out in that and leveled up a road up Ashley street, over opinion that the plat or bill of assurance which he could haul as much as a yard of which Beebe filed pursuant to the terms of sand at a time with a team of mules which his covenant did not show Water street as he had provided for that purpose. In 1901 extending to the water's edge, but as a street Jouryens had the land surveyed and had a 45 feet in width. The court there said that the plat thereof made. He applied to enter the city's rights were not defined and limited by