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70 Okla. Crim. 404

106 P.2d 836

Thomas v. State

Court of Criminal Appeals of Oklahoma

Decided October 23, 1940

Court of Criminal Appeals of Oklahoma · decided 1940-10-23

Cited by 18 later decisions — most recently January 1955

18 state decisions

Key passage — most relied on by later courts

““This court is very hesitant about affirming a conviction for unlawful possession of intoxicating liquor where the amount found in possession of the offender is less than one quart and were it not for all the other attendant circumstances, as hereinabove outlined, we would not hesitate to reverse this case because of the insufficient quantity seized by the officers on the occasion of their raid. “An intent to sell is the gist of the offense of unlawful possession of intoxicating liquor. The possession in excess of one quart is prima facie evidence of an intent to sell under our statute, 37 O. S. 1941 § 82, but that does not mean that a conviction may not be had where there is possession of less than one quart. “We also have a statute which provides that the payment by the defendant of the special liquor dealer’s tax to the United States Government, which may be shown by the possession of a federal retail liquor dealer’s license, constitutes- prima facie evidence of an intent to sell, where the accused is found in possession of intoxicating liquors. 37 O. S. 1941 § 81. * * * “In view of these circumstances, we are impelled to the conclusion that the evidence is sufficient to sustain the conviction.””

quoted by 1 later decision, including 85 Okla. Crim. 296 - Gentry v. State

““Ordinarily, upon a trial under an information charging that the defend ant had possession of intoxicating liquors with the intention of violating the prohibitory liquor law, evidence of the general reputation of defendant’s home as a place where intoxicating liquors are kept for sale is incompetent to prove the charge. “Where evidence discloses the possession of intoxicating liquor in a place of public resort, fitted up with all the fixtures and appurtenances of a liquor saloon, the general reputation of such place as a place where intoxicating liquors are kept for sale is admissible on the question of criminal intent, where the crime charged is the unlawful possession of intoxicating liquor with intent to sell the same. “Proof that defendant’s home had the general reputation of being a place of public resort is not a sufficient predicate to authorize the admission of evidence of the general reputation of such place as a place where intoxicating liquor is kept for sale.””

quoted by 1 later decision, including Clark v. State

Relies on 9 Okla. Crim. 382 - Brown v. State · 4 Okla. Crim. 398 - In Re Talley · 16 Okla. Crim. 533 - Simpson v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1940-10-23

View the full empirical analysis of this case →

JONES, J.

¶1 The defendant Sadie Thomas, was charged in the county court of Grady county, Okla., with the crime of unlawful possession of intoxicating liquor, was tried, convicted and sentenced to serve 60 days in the county jail, pay a fine of $100 and costs, and has appealed to this court.

¶2 The information filed against the defendant charges her with the unlawful possession of one-half pint of whisky and three-fourths of a pint of dry gin.

¶3 The defendant raises two questions on this appeal:

¶4 First. Error of the court in overruling her motion to quash the information.

¶5 Second. Error of the court in overruling her demurrer to the state’s evidence.

¶6 In connection with the first assignment of error, the motion to quash the information was presented on the grounds that the information was not verified as required by law before being filed with the county court. This motion was filed after the defendant had been arraigned and had entered her plea of not guilty. The defendant did not ask permission to withdraw her plea of not guilty Ifor the purpose of filing the motion to quash, but the motion to quash was filed several months after her arraignment and. plea.

¶7*406 Under the decisions of this court, when the defendant was arraigned and entered her plea of not guilty without questioning the sufficiency of the information, she is deemed to have waived any irregularities therein. In re Cummings, 11 Okla. 286, 66 P. 832; Ex parte Talley, 4 Okla. Cr. 398, 112 P. 36, 31 L. R. A., N. S., 805; Brown v. State, 9 Okla. Cr. 382, 132 P. 359; Simpson v. State, 16 Okla. Cr. 533, 185 P. 116.

¶8 For this reason the court did not err in overruling the motion to' quash.

¶9 The state introduced the evidence of three officers’ who testified, in substance, that they went to the home of the defendant in Chickasha on August 12, 1938, shortly after noon. That they looked in the refrigerator of the defendant in her kitchen and found a pint bottle about half filled with whisky and another pint bottle about three-fourths full of dry gin. No other liquor was found. Two empty quart bottles with whisky labels on them were found behind the kitchen door. One of the officers testified that he looked in one of the drawers of the kitchen cabinet and found two or three small glasses which he took to be dram glasses. That the defendant was sitting in the southeast bedroom sewing on a dress when they entered her home. That her daughter was there with her and no one else wras in the house. The defendant complained to the officers of being sick.

¶10 No other evidence was introduced by the state. The defendant interposed her demurrer to the evidence, insisting that the state had failed to prove that the defendant had committed any offense against the prohibition laws of the state of Oklahoma, which demurrer was overruled and exception allowed to the defendant.

¶11 We think this demurrer should have been sustained. However guilty the defendant may have been, the state has *407 wholly failed to make a prima facie case. Less than one quart of whisky was found. The state made no effort to prove that the place where the whisky was found was a place of public resort and that it had the general reputation of being a place where intoxicating liquors were sold, which they would have had a right to do in order to establish the unlawful intent of the defendant in the possession of liquors. Winton v. State, 50 Okla. Cr. 1, 295 P. 400; Eastridge v. State, 57 Okla. Cr. 323, 48 P. 2d 869; Reed v. State, 24 Okla. Cr. 305, 217 P. 1058; Buckley v. State, 69 Okla. Cr. 285, 102 P. 2d 619.

¶12 It is not against the law to have possession of liquor in Oklahoma for your own use; but it is against the law to have the possession with intent t«o sell. The intent to sell is an element of the offense and must be proved the same as any other element. The Legislature has provided that the possession in excess of one quart of intoxicating liquor is prima, facie evidence of an intent to violate the law (2626 O. S. 1931, as amended by Session Laws of 1933, ch. 153, p. 339; 37 Okla. ,St. Ann. § 82); but where the possession is of less than one quart, the intent to sell must be proved by the state.

¶13 This court believes in the enforcement of the prohibition law, but we cannot violate the rules of evidence in order to uphold the hands of the officers in the enforcement of this law. It would be a travesty on justice to sustain this conviction in the face of such weak evidence as was presented by the state. The proof is so weak that the case should never have been filed by the county attorney.

¶14 For the reasons hereinabove stated, the judgment of the county court of G-rady county is hereby reversed and the defendant discharged.

DOYLE, P. J., and BAREFOOT, J., concur.
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