Smith v State

Smith v State
1919 OK CR 243
182 P. 730
16 Okl.Cr. 697
Decided: 08/12/1919
Oklahoma Court of Criminal Appeals

Appeal from County Court, Choctaw County; W.T. Glenn, Judge.

Page 698

R.P. Smith was convicted of a violation of the prohibitory liquor law, and he appeals. Reversed.

Jordan & Burke, for plaintiff in error.

The Attorney General and W.C. Hall, Asst. Atty. Gen., for the State.

PER CURIAM. Plaintiff in error was convicted upon a charge that he did unlawfully have in his possession about 2 1/2 gallons of beer with intent to barter, sell, and give away the same, and his punishment was assessed at a fine of $50 and 30 days' confinement in the county jail. To reverse the judgment rendered on the verdict he appeals.

Various errors have been assigned, but in the view we take of this case, we deem it necessary only to consider the question of the sufficiency of the evidence to support the verdict.

The evidence was substantially as follows: R.B. Fitzgerald testified that in company with Joe Dupree, his deputy, he went to the farm of defendant, about two miles south of Forney, and found the defendant in a field where he and his boy had been planting cotton; he told Smith he wanted to search his place for intoxicating liquors. Smith returned to the house with him, where the officers found three or four quarts of what they called Choctaw beer in bottles, and afterwards, about 150 yards from the house, they found a ten-gallon keg partly buried in the ground in which was about one gallon of Choctaw beer, and lots of empty bottles were found about the place. The testimony of both witnesses as to the character of the liquor found is vague. They testified that they believed it was Choctaw beer, and that it was intoxicating. There was no evidence offered tending to prove payment of the special tax required of liquor dealers by the federal government; no testimony tending to show an unlawful intent to violate provisions of the prohibitory law. The quantity found is not sufficient to constitute prima facie evidence of an unlawful intent.

Upon a careful consideration of all the evidence in the case, we are of opinion, as a matter of law, the evidence was insufficient to justify a conviction.