Oklahoma v Zanger

Oklahoma v Zanger
1913 OK CR 84
130 P. 1107
9 Okl.Cr. 122
Case Number: No. A-1628
Decided: 04/05/1913
Oklahoma Court of Criminal Appeals

(Syllabus by the Court.)

INTOXICATING LIQUORS Information Illegal Sale. An information, although awkwardly drawn, and containing several allegations which are objectionable, and the intent of which apparently indicates that it was the purpose of the pleader to charge two distinct offenses, but which, because of the language used, only charges one offense, to wit, the unlawful sale of beer, states facts sufficient to constitute an offense against the laws of this state, and is not demurrable.

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Appeal from Coal County Court; R.H. Wells, Judge.

Information against Adam Zanger for violating the prohibitory law. From a judgment sustaining a demurrer thereto, the State brings error. Reversed.

Jas. R. Wood

Fooshee & Brunson

ARMSTRONG, P.J. This appeal is by the state of Oklahoma upon a question reserved by the county attorney.

It appears that an information was filed in the county court of Coal county purporting to charge the defendant in error with violating the prohibitory law, the charging part of said information being as follows:

"Said Adam Zanger did then and there willfully and unlawfully sell and furnish to one Jesse Combs certain malt liquors, to wit, beer, and a certain imitation of, and a substitute for, malt liquors, to wit, an imitation of, and a substitute for, beer."

A demurrer was filed to this information on behalf of the defendant in error, and was sustained by the trial court on the following grounds:

"That said information does not state facts sufficient to constitute a crime against the laws of the state of Oklahoma, * * * that the information is duplicitous charging more than one offense against the defendant."

The court erred in sustaining the demurrer to the information, because it does state facts sufficient to allege the offense of selling beer. Under a former holding of this court, it does not state facts sufficient to constitute a "furnishing" within the meaning of the prohibitory law. Scott v. State, 6 Okla. Cr. 492, 119 P. 1023. The allegation relative to furnishing is surplusage.

The latter clause in the charging part of the information does not state facts sufficient to constitute the sale of an imitation or substitute for beer under the holding of this court in

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the case of Ex parte Hunnicutt, 7 Okla. Cr. 213, 123 P. 179, and for that reason it is not duplicitous; that portion of the information being also surplusage. We do not want to be understood as approving this information as a model form of pleading, but it is sufficient to charge and does charge the illegal sale of intoxicating liquor, to wit, beer.