Fowler v State

Fowler v State
1945 OK CR 33
157 P.2d 222
80 Okl.Cr. 86
Decided: 03/21/1945
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Appeal and Error-Harmless Error in Improper Argument. Remarks of the prosecuting attorney in his argument before the jury, objected to as improper, will be considered and construed in reference to the evidence, and, in order to constitute reversible error, the impropriety indulged in must have been such as may have influenced the verdict.

2. Intoxicating Liquors-Proof by Circumstantial Evidence That Liquid Was Whisky. The proof that liquid seized in defendant's car at time of arrest was whisky as alleged in information could be made by circumstantial as well as by direct evidence.

3. Same-Sufficiency of Evidence to Sustain Conviction for Transporting. Proof that liquid found in defendant's car was in pint bottle with unbroken government liquor seal, that it was red in color, had the appearance of whisky, and bottle was labelled whisky were sufficient circumstances to show that liquid transported by defendant was whisky, and, in the absence of any proof offered on behalf of defendant, was sufficient to sustain the conviction.

Appeal from County Court, Stephens County; Gilbert H. Bond, Judge.

Page 87

Ike Fowler was convicted of transporting intoxicating liquor, and he appeals. Affirmed.

Jerome Sullivan, of Duncan, for plaintiff in error.

Randell S. Cobb, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.

JONES, J. The defendant, Ike Fowler, was charged in the county court of Stephens county with the unlawful transportation of intoxicating liquor; was tried, convicted, and sentenced to serve 30 days in the county jail and pay a fine of $50, and has appealed.

Two assignments of error are presented in defendant's brief, to wit: (1) Misconduct of the county attorney in his closing argument to. the jury which prejudiced defendant's substantial rights. (2) The verdict is not sustained by the evidence and is contrary to the law. We shall consider these two assignments together.

The evidence shows that two officers of Stephens county armed with a search warrant for the car of defendant saw defendant driving his automobile in the city of Duncan, on May 30, 1942. They stopped his car, searched it, and found one pint of whisky hidden in a secret built in compartment up under the dash board. No evidence was offered on behalf of the defendant.

We have examined the argument complained of and it is our opinion that it was not such as unduly influenced the verdict of the jury. Here the guilt of the defendant is apparent. Under the record, no juror with any regard for his oath could do other than return a verdict of guilty. Since the jury assessed only the minimum punishment, the argument of the county attorney evidently did not develop any passion or prejudice in the minds of the jurors. For that reason, it is our opinion that although some of the argument may have been outside of the record and therefore

Page 88

improper that, under the facts herein, it is harmless error. Gee v. State, 53 Okla. Cr. 383, 12 P.2d 547; Robinson v. State, 44 Okla. Cr. 189, 280 P. 1112.

In connection with the second assignment of error, it is argued that since one of the officers who made the search could not identify the bottle of whisky produced by the county attorney with the other officer's signature appearing thereon, that the evidence was insufficient to support the verdict. The other officer whose name appeared on the whisky bottle had joined the Navy before the time of trial and was not a witness. The officer who did testify said that they took a pint bottle of whisky with a green label from defendant's car; that the government seal on the bottle had not been broken; that the liquid was labelled "whisky" and the witness stated that in his opinion the pint of whisky submitted by the county attorney was the identical whisky taken from defendant's car.

As to whether the liquid seized on that occasion was whisky as alleged in the information, the proof could be made by circumstantial as well as by direct evidence. The fact that the liquid was in a pint bottle with an unbroken government seal, that it was red in color and had the appearance of whisky and was labelled "whisky" was a sufficient showing that the liquid transported by the defendant was whisky, and in the absence of any proof offered on behalf of defendant, was sufficient to sustain the conviction.

A careful reading of the entire record discloses, no errors of sufficient importance to justify a reversal of the judgment of conviction. The judgment of the county court of Stephens county is accordingly affirmed.