Fischer v State

Fischer v State
1923 OK CR 217
217 P. 227
24 Okl.Cr. 191
Decided: 08/04/1923
Oklahoma Court of Criminal Appeals

(Syllabus.)

Intoxicating Liquors Evidence Sustaining Conviction for Unlawful Possession.

Appeal from County Court, Stephens County; G.T. Burrows, Judge.

J.B. Fischer was convicted of unlawful possession of intoxicating liquor, and he appeals. Affirmed.

Wilkinson & Saye, for plaintiff in error.

The Attorney General and N.W. Gore, Asst. Atty. Gen., for the State.

PER CURIAM. This is an appeal from the county court of Stephens county, wherein on the 13th day of December, 1921, plaintiff in error was convicted of the crime of unlawful possession of intoxicating liquor and punishment assessed at a fine of $200 and imprisonment in the county jail for a period of 60 days.

The sole question relied upon to reverse the judgment is that the evidence is insufficient to sustain the conviction. The facts are substantially as follows: Fischer lived on a farm about 5 miles east of the city of Duncan in Stephens county.

Page 192

On or about the 6th day of September, 1921, E.H. Rhyne, sheriff of Stephens county, together with one Gossett, chief of police of the city of Duncan, and Mr. Brown and Mr. Cleveland searched the premises of the defendant and found thereon 4 half-gallon fruit jars full of whisky. One of these jars was found buried in the ground in the cowshed about 50 yards from defendant's house and three others under some corncobs in the hogpen adjoining the cowshed. Defendant was present at the time the search was made, and during the time the officers were on the premises some automobiles drove out to the defendant's house on the road from Duncan and turned around and went back. The defendant testified that he had control of part of the barn or shed where some of the liquor was found, and that Nat Green, his brother-in-law, had control of part of it; that he (defendant) had no knowledge that the whisky was buried where the officers found it until afterwards, when he learned from one Tim Starr, who worked for Nat Green, that Nat Green had put the whisky out there, and on cross-examination the defendant testified that he did not tell the officers that Nat Green had anything to do with the premises nor did he later tell them he had learned from Starr that Green had put the whisky on the premises, and it also further developed that at the time of the trial both Green and Starr had left Stephens county.

The trial court fully covered the law of the case in the instructions, and no complaint is made of any instruction given. The jury was told that the defendant could not be convicted merely because intoxicating liquor was found upon his premises, but that the burden was upon the state, not only to prove possession in the defendant, but in addition to prove that the defendant intended to violate the prohibitory liquor laws of the state of Oklahoma by selling, bartering, giving away, and otherwise furnishing such liquor to other persons, and further

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that the defendant could not be convicted on circumstantial evidence unless the circumstances were such as to exclude every other reasonable hypothesis than that of the guilt of the defendant.