Banks v. State

• Decision Date: 01 May 1909
• Citation: 101 P. 610,2 Okla.Crim. 339,1909 OK CR 63
• Parties: BANKS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

101 P. 610

2 Okla.Crim. 339, 1909 OK CR 63

BANKS v. STATE.

Court of Criminal Appeals of Oklahoma

May 1, 1909

Syllabus by the Court.

An information or indictment for a single sale of intoxicating liquors must allege the name of the person to whom the sale was made, if known; if unknown, this fact must be alleged.

[Ed Note.-For other cases, see Intoxicating Liquors, Cent. Dig §§ 237-239; Dec. Dig. § 219. ^[*]]

It is error for the court to single out the defendant and instruct the jury upon the credibility of his evidence.

[Ed Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1969 1971; Dec. Dig. § 811. ^[*]]

It is error for the court to instruct the jury that if the testimony shows the commission of the offense charged, at any time since the date mentioned in the indictment, they may convict. Instructions as to the time must be confined to the time extending back from the filing of the prosecution to the date included in the statute of limitations.

[Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 772. ^[*]]

If counsel fail, in their briefs, to state fully the grounds upon which they rely for a reversal, this court will treat such questions not so presented as having been waived, unless such questions involve fundamental matters.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 3012; Dec. Dig. § 1178. ^[*]]

Appeal from Muskogee County Court; W. C. Jackson, Judge.

Bud Banks was convicted of an illegal sale of liquor, and appeals. Reversed and remanded.

The charging part of the information is as follows: "That the said Bud Banks in the county of Muskogee, state of Oklahoma, on the 29th day of August, 1908, did knowingly and unlawfully sell and furnish intoxicating liquors contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state." The defendant demurred to the information upon the ground that it did not state the name of the person or persons to whom the intoxicating liquors were sold. This demurrer was overruled by the court, to which the defendant excepted. Upon the trial the court instructed the jury as follows: "No. 3. The court instructs the jury that the defendant in this case is a competent witness in this case, and you must consider his testimony in arriving at a verdict; but in determining what weight and credibility you must give to his testimony in making up your verdict, you may take into consideration the fact that he is the defendant in this case and on trial, his interest in the result of the trial, together with any other fact or circumstance of the trial affecting the credit to be given the testimony of any of the witnesses in the case." To this instruction the defendant excepted. The court instructed the jury as follows: "The court instructs the jury: That the defendant is charged with the crime of selling intoxicating liquor; that, if the jury believe from the testimony beyond a reasonable doubt that the defendant did, at any time since the 24th day of March, 1908, within the county of Muskogee, state of Oklahoma, sell intoxicating liquors of any kind, including beer, ale, and wine, it is your duty to find the defendant guilty as charged in the information." To this instruction the defendant reserved an exception. The defendant was found guilty by the jury. Motions in arrest of judgment and for a new trial were filed by the defendant and overruled by the court, to which the defendant excepted. The defendant was then sentenced by the court to pay a fine of $50, and the costs of the prosecution, and to 30 days' confinement in the county jail of Muskogee county. The case is regularly before us upon appeal.

S. M. Rutherford and Bailey & Kistler, for appellant.

Fred S. Caldwell, for the State.

FURMAN P.J.

First. The information in this case is fatally defective because it does not allege the names of the person or persons to whom the alleged sale of intoxicating liquors was made, or allege that such name or names were unknown. Our reasons for this conclusion, and the authorities upon which we rely, will be found in the cases of Weston v. Territory (Okl. Cr. App.) 98 P. 360, Fletcher v. State (not yet officially published) 101 P. 599, and Lightle v. State (not yet officially published) 101 P. 608.

The court therefore erred in not sustaining the demurrer to the information.

Second. In the cases of Green v. United States, 101 P. 112 and Fletcher v. State, supra, this court held that it was error for the court to single out the defendant and instruct the jury as to the credibility of his testimony. In addition to what was said in the two cases above referred to, we will add that the credibility of any witness in a case is the proper subject of argument by the counsel in the case, and must be submitted to the jury for determination unhampered by any suggestions from the trial court. Our views are well presented in the following authorities: "Because of the difficulty, however, in so framing an instruction, where the defendant's name is mentioned at all, as not to give his testimony undue prominence, either for or against him, it would be better for trial judges to let him pass, with all the other witnesses, under the purview of a general charge as to the credibility of all the witnesses, leaving to the attorneys in argument to call the attention of the jury to any peculiar facts applicable to any particular witness." Vaughan v. State, 58 Ark. 365, 24 S.W. 888. "From the high and authoritative position of a judge presiding at a trial before a jury, his influence with them is of vast extent, and he has it in his power, by words or actions, or both, to materially...