Good v State

Good v State
1928 OK CR 119
264 P. 920
39 Okl.Cr. 342
Decided: 03/20/1928
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Intoxicating Liquors Messenger of Buyer Held Liable for Assisting in Sale. Any person who acts as a messenger or agent of the buyer in going after, purchasing, or bringing to such purchaser intoxicating liquors is thereby aiding and assisting in the sale of such liquor, and may be prosecuted for such sale.

2. Appeal and Error Power of Court to Modify Judgment by Reducing Sentence. Under section 2820, C.S. 1921, this court has the power in the furtherance of justice to modify any judgment appealed from by reducing the sentence.

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Appeal from County Court, Caddo County; R.L. Lawrence, Judge.

Tom Good was convicted of selling whisky, and he appeals. Modified and affirmed.

M. Bristow and H.W. Morgan, for plaintiff in error.

Edwin Dabney, Atty. Gen., for the State.

DOYLE, P.J. Plaintiff in error, Tom Good, was convicted on a charge that he did sell one pint of whisky to W.F. Dunaway for $2, the jury leaving the punishment to be assessed by the court. Motion for new trial was duly filed and overruled, and he was sentenced to pay a fine of $200 and to imprisonment for 60 days in the county jail. From the judgment he appeals.

The errors assigned question the sufficiency of the evidence to support the verdict and assert that the punishment imposed was excessive.

The testimony of W.F. Dunaway and Walter Sledge, deputy sheriffs, shows that with Bickerstaff, another deputy sheriff, they visited the defendant's restaurant in the town of Apache; Bickerstaff claimed to be sick, and they asked the defendant for some whisky; that Dunaway paid him $2 for a pint of whisky.

As a witness in his own behalf, Tom Good testified that he had lived in Apache 25 years, during which time he conducted a farm, blacksmith shop, and now a restaurant; that, when these parties came in, there was not a drop of whisky in the house, that they asked him if he could get them some whisky, and he told them he did not know where they could get any whisky; that they went out, and about an hour later came back and said, "You can get us some whisky, we have got to have it," and he told them he did not know where to get it; that later two of them came back and ordered another lunch, and said the other fellow could

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not come, "he has gone down on us," and, as a favor, he went across the street and got a pint of whisky for them.

Several witnesses testified that they knew the reputation of the defendant in that community as a law-abiding citizen for many years, and that reputation was good.

It has been repeatedly held by this court, where the defendant claims that he merely acted as the agent of the purchaser in procuring prohibited liquor, such claim will not constitute a defense. It rather shows that he is guilty upon his own testimony. Lamm v. State, 4 Okla. Cr. 641, 111 P. 1002; Buchanan v. State, 4 Okla. Cr. 645, 112 P. 32, 36 L.R.A. (N.S.) 83.

It follows that the evidence is clearly sufficient to sustain the verdict. However, in view of the disclosures in the record, we are impelled to the conclusion that substantial justice requires a modification of the judgment.