Hybarger v State

Hybarger v State
1912 OK CR 259
121 P. 1133
7 Okl.Cr. 704
Case Number: No. A-1297
Decided: 02/03/1912
Oklahoma Court of Criminal Appeals

Appeal from Garvin County Court; W.B.M. Mitchell, Judge.

Oscar Hybarger was convicted of violating the prohibitory law, and appeals. Reversed and remanded.

J.S. Garrison and Thompson & Patterson, for plaintiff in error.

PER CURIAM. Plaintiff in error was convicted in the county court of Garvin county at the April, 1911, term, on a charge of selling intoxicating liquor, and his punishment fixed at a fine of fifty dollars and imprisonment in the county jail for a period of thirty days. One of the assignments of error relied upon is as follows:

"The court erred in admitting in evidence, over the objection of the defendant, a certain written memorandum as testified to by witness D.H. Hays, which was not made in the presence of the accused, and which contains a statement of facts purporting to be signed by a third party."

From the record it appears that the county attorney had the prosecuting witness, Hays, identify a certain bottle of whisky, which it was contended was the whisky he purchased from the accused on the 9th of January, 1911, and upon which transaction this prosecution is based. It further appears that the officer had written out a statement, which the prosecuting witness and one Robert Badger had signed, and pasted on the bottle. That this bottle and memorandum were admitted in evidence. The memorandum is as follows:

"We, the undersigned, hereby certify that we bought this bottle of whisky from Oscar Hybarger in the town of Lindsey, Garvin county, Oklahoma, on January 9, 1911, about 8 o'clock p.m. at night. Dave H. Hays. Robert Badger."

Robert Badger was not called as a witness by the state, and did not testify at the trial of this case. It is contended that the admission of this exhibit as evidence had the effect of placing before the jury the testimony of Robert Badger, who was not a witness, who was not sworn, and who did not testify in the case. Only one witness testified for the state, and the defendant and two other witnesses contradicted his testimony. The exhibit, that is, the bottle of whisky, was competent evidence, but the memorandum thereon should not have been permitted to go to the jury. The memorandum tells the jury that