Kuhn v State

Kuhn v State
1941 OK CR 44
111 P.2d 823
71 Okl.Cr. 351
Decided: 03/19/1941
Oklahoma Court of Criminal Appeals

(Syllabus.)

Intoxicating Liquors Unlawful Possession-Possession of Only Two Half Pints Insufficient to Make Prima Facie Case Failure of Proof as to Unlawful Intent.

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any further evidence in an attempt to establish the unlawful intent, the court should have instructed the jury to return a verdict for the defendant.

Appeal from County Court, Coal County; W. B. Thornsbrough, Judge.

Johnnie Kuhn was convicted of the crime of unlawful possession of intoxicating liquor, and he appeals. Reversed.

Mac Q. Williamson, Atty. Gen., and Marvin Balch, Co. Atty., of Holdenville, for the State.

H. M. Shirley, of Coalgate, for defendant.

BAREFOOT, P. J. The defendant was charged in the county court of Coal county with the crime of unlawful possession of intoxicating liquor, was tried, convicted and sentenced to pay a fine of $50 and to serve 30 days in the county jail and has appealed.

This case arose by reason of a search of the premises of the defendant in the city of Coalgate on the 21st day of January, 1939, by the sheriff of Coal county and two of his deputies. The defendant represented himself at the trial and did not have an attorney. The case was tried by five jurors by agreement. The sheriff and his deputies testified that they had search warrants for the purpose of searching the restaurant and filling station of the defendant in the city of Coalgate. The search of the restaurant resulted in not finding any liquor. The officers then went in the alley to the north of the filling station, and while there saw the defendant come out the back door of the filling station and throw two half pints of whisky out in the direction where the officers were standing. They recovered these two half-pint bottles, which were introduced in evidence. The search warrants were not introduced in evidence and no other evidence was introduced by the

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state. We are of the opinion that it was insufficient to convict the defendant, and the court should have so instructed the jury. The amount of whisky found was less than a quart. Under the law the possession of less than a quart raised no prima facie intent on the part of the defendant to sell, give or otherwise dispose of the liquor in violation of law. 1933 Session Laws, chapter 153, p. 339, sec. 3, Oklahoma Statutes Annotated, Title 37, sec. 82; Thomas v. State, 70 Okla. Cr. 404, 106 P.2d 836, and cases cited therein.