The opinion
Ed. F. McFaddin, Associate Justice (concurring). I agree with the majority that this case should be reversed; but I submit that it should not be reversed on the issue of interstate commerce. Bather, the reversal should be because of the entire absence of any evidence that any offense was committed by the appellant.
I. Interstate Commerce. The majority opinion says that the cigarettes were moving in interstate commerce and, therefore could not be taxed. In the matter of tax exemption because of interstate commerce, the test is not merely whether there was interstate commerce, but the test is whether the tax is a burden on interstate commerce. In the case of McLeod v. Memphis Natural Gas Co., 207 Ark. 879 , 183 S. W. 2d 927 , the natural gas was certainly moving in interstate commerce, and yet the tax was sustained. There are many other cases involving interstate commerce in which the tax was sustained; so I thoroughly agree with the dissenting opinion that the reversal should not be on the basis of interstate commerce. In short, I see no need to rest the opinion on the complex issue of interstate commerce, when the case could be decided on the simple issue of no evidence of law violation.
II. Absence of Evidence of Any Offense. My reason for reversing this case is because a careful reading of the record discloses no evidence of an offense committed by the appellant. He openly and frankly stopped his truck and disclosed its contents at the entry port and stated his destination to be Texas. Then he proceeded along U. S. Highway No. 67 toward Texas, and when he was arrested, he was still on U. S. Highway No. 67 headed toward Texas. He had committed no offense: The statute here involved (§ 84-2317 Ark. Stats.) makes the offense: . . it shall be unlawful for any person to . . . have in his possession for sale . . . any cigarettes upon which the tax prescribed by this Act has not been paid”. The appellant had the cigarettes in his possession. Did he have them in his possession for sale ? Where is the evidence that he ever intended to sell the cigarettes in Arkansas without paying the tax? I submit there is none. Here is all the record contains on the vital question:
‘1 CrOSS-ExAMINATION
“Q. As a matter of fact were you taking them to Houston?
“A. Probably the first place.
“Q. Why wait and go to the state line?
“A. There was supposed to have been more money involved.
“Q. You were supposed to get more in Texas than Arkansas ?
“A. I should have realized two or three percent on the load.
‘ ‘ Q. If you could have gotten three in Arkansas, you would have sold them, would you not?
“A. Yes, sir.
Re-Direct ExamiNatioN
“Q. Where had you started when you came into Arkansas.
“A. I was going to Texas.
“Q. Had you intended to stop in Arkansas!
“A. No, sir.”
It will be observed that appellant was asked if he could have gotten three percent profit on the cigarettes in Arkansas, would he have sold them; and he said yes. The State did not ask him if he would have sold them without paying the tax. He was merely asked if he could have gotten three percent, would he have sold the cigarettes. On that one question and answer the State contended in the oral argument before this Court that appellant admitted that he possessed the cigarettes in Arkansas for the purpose of illegal sale. I submit that he made no such admission. He merely said that he would have sold them, but do we presume that he was going to violate the law? I understand the State still has the burden of proving the guilt of the accused beyond a reasonable doubt; and I submit that that one question and answer on cross-examination does not constitute any admission of guilt.
Suppose while driving down the highway at 25 miles an hour in a lawful manner, a person should be arrested for speeding and when the case came up for trial it was shown that he had been going 25 miles an hour; but suppose the prosecuting attorney asked him on cross-examination, whether, under any circumstances he would have gone faster than 60 miles an hour and he answered in the affirmative. Did the answer that he might, under some circumstances, have gone faster than 60 miles an hour prove that he had been speeding at the time and place when he was arrested? No. A hypothetical question, as to what one might do at some other time and place, but had never done, is no evidence of what one did at the time and place for which he is being tried. This simple illustration shows that the appellant in this case had not violated any law; and so his conviction should be reversed. But it should be on the factual issue rather than on the issue of interstate commerce.