Collins v State

Collins v State
1928 OK CR 312
271 P. 859
41 Okl.Cr. 134
Decided: 11/24/1928
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Intoxicating Liquors Information for Possession of Mash Held not Demurrable. Where the information charges the defendants had in their possession mash fit for distillation and for the manufacture of intoxicating liquor, it sufficiently charges an offense, and a demurrer to the same is properly overruled.

2. Fair and Impartial Trial Shown by Record. The record discloses that the defendants had a fair and impartial trial, and that their rights were not prejudiced by reason of the procedure used in the calling and impaneling of the jury.

3. Intoxicating Liquors Evidence Sustaining Conviction for Possessing Mash. Record examined, and evidence held sufficient to sustain the judgment for having possession of mash fit for distillation.

Appeal from County Court, Dewey County; R.L. Foster, Judge.

Joe Collins and another were convicted of having possession of mash fit for distillation and for the manufacture of intoxicating liquor, and they appeal. Affirmed.

W.P. Hickok, for plaintiffs in error.

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

DAVENPORT, J. The plaintiffs in error, hereinafter called the defendants, were convicted in the county court of Dewey county of the crime of having

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in their possession and under their control 150 gallons of mash fit for distillation and for the manufacturing of intoxicating liquor, and were each sentenced to confinement in the county jail for a period of 90 days and to pay a fine of $400 and cost. Motion for new trial was filed and overruled, and exceptions duly saved, and the defendants perfected their appeal to this court.

The testimony on behalf of the state tends to show that the officers found the defendants in possession of about 150 gallons of mash fit for distillation and for the manufacturing of whisky, a still, a 5-gallon can of coal oil, and sack of sugar; that the mash was made of bran, sugar, and malt; that the place where they found the defendants with the mash and still was about two miles from any house, out in some woodland, no inclosure, so far as the record discloses.

No testimony was introduced on the part of the defendants. At the close of the testimony of the state, the defendants moved the court to discharge the defendants, for the reason that the evidence on its face is incompetent, irrelevant, and immaterial, and shows to have been procured by officers as trespassers, not under the authority of a search warrant, and for that reason that the evidence of the state, with the limitations thereon placed, is insufficient to support the verdict of guilty in this case, which motion was by the court denied, and defendants duly excepted.

Several errors are assigned by the defendants and urged as grounds for reversal of this case. The testimony in this case shows that the mash and still, and other things testified to by the witnesses, were from a mile and a half to two miles from a house, out on lands not owned or controlled by the defendants; therefore the officers were not trespassers, and had a perfect right, where they saw the defendants committing the

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offense, to arrest them without a search warrant or warrant for their arrest.