Duncan v State

Duncan v State
1928 OK CR 243
268 P. 998
40 Okl.Cr. 347
Decided: 07/14/1928
Oklahoma Court of Criminal Appeals

(Syllabus.)

Appeal and Error Review Necessity for Assignments of Error to Be

Page 348

Preserved in Motions for New Trial. Only those assignments of error preserved in a motion for a new trial will be considered on appeal in this court, unless they assign error of a fundamental character.

Appeal from County Court, Murray County; W.G. Long, Judge.

Charley Duncan was convicted of violating the prohibitory liquor law, and he appeals. Affirmed.

Jesse H. Dunn, for plaintiff in error.

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

EDWARDS, J. The plaintiff in error, hereinafter called defendant, was convicted in the county court of Murray county on a charge of conveying intoxicating liquor from one point in the state to another, and was sentenced to pay a fine of $50, and to serve a term of 30 days in the county jail.

The record discloses that at the time charged defendant was arrested while in the act of transporting 34 pints of "choc beer," and there is evidence that this was intoxicating. Defendant admitted the possession of the beer, but stated that he had found it, and that he was taking it home, and did not know it was intoxicating, and had no intention of violating the law. On cross-examination admitted that he had been previously convicted of violating the prohibitory law.

The motion for a new trial assigns but three grounds: First, that the verdict is not supported by the evidence; second, that the verdict is contrary to the law; and, third, error of the court in overruling the demurrer to the evidence.

Defendant's counsel argue that the evidence was obtained by an unlawful search, but, as this was not

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presented to the trial court by a motion for a new trial, it is not before this court.

Also it is argued that the court erred in permitting the defendant on cross-examination to be asked about a previous conviction. This was for the purpose of impeachment, and was permissible. Section 585, Comp. Stat. 1921. Counsel who appear here were not the counsel who tried the case in the lower court.