Blue v. State

• Decision Date: 06 April 1922
• Docket Number: A-3935.
• Citation: 205 P. 774,21 Okla.Crim. 156
• Parties: BLUE v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

205 P. 774

21 Okla.Crim. 156

BLUE v. STATE.

No. A-3935.

Court of Criminal Appeals of Oklahoma

April 6, 1922

Syllabus by Editorial Staff.

A conviction for unlawful possession of intoxicating liquor cannot be sustained where there is no evidence to show that the liquor is intoxicating.

Appeal from County Court, Latimer County; C. R. Hunt, Judge.

Bertha Blue was convicted of violating the prohibitory liquor law and she appeals. Reversed.

A conviction for unlawful possession of intoxicating liquor cannot be sustained where there is no evidence to show that the liquor is intoxicating.

H. T Church, of Wilburton, for plaintiff in error.

The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.

PER CURIAM.

Plaintiff in error, Bertha Blue, was tried, convicted, and sentenced to be confined in the county jail for 30 days, and pay a fine of $50 on an information which charges that Bertha Blue did--

"unlawfully have and keep in her custody and possession 30 gallons of Choctaw beer, the same being then and there a malt and fermented liquor, with the unlawful intent upon the part of her, the said defendant, Bertha Blue, to sell the same."

Among the errors assigned, several question the sufficiency of the evidence to support the conviction.

The testimony for the state is substantially as follows:

J. G Shaw, sheriff, testified that in serving a search warrant he found about 30 gallons of a liquid at the defendant's home, drank some of it, and pronounced it Choctaw beer; did not drink enough of it to say that it was intoxicating; could not say that it contained malt; poured the contents of the cask out; did not have the same analyzed, and did not make any report to the county clerk of the amount destroyed.

Ed Buse, undersheriff, testified:

"I was present when the contents of the keg was destroyed by Sheriff Shaw; knows what Choctaw beer is; that it is made from malt, hops, sugar, and yeast cake; could not say that this Choctaw beer was intoxicating; did not make return of the search warrant."

J. Bramlett, deputy sheriff, testified:

"I was present and drank some of the contents of the barrel and pronounced it Choctaw beer; it tasted like Choctaw beer, only it was sweet; could not tell what this beer consisted of; from 25 years of experience with Choctaw beer I know it has to contain malt."

Arthur Brashers testified:

"Was with the sheriff and drank some of the liquid; it tasted like Choctaw beer; do not know that this beer contained malt."

Ed Riddle testified:

"I was present when the officers came; drank some of this beer at the instance of the officers; I could

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