Brannin v. State, A-13215

• Decision Date: 10 October 1962
• Docket Number: No. A-13215,A-13215
• Citation: 375 P.2d 276
• Parties: Robert L. BRANNIN, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 276

375 P.2d 276

Robert L. BRANNIN, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-13215.

Court of Criminal Appeals of Oklahoma.

Oct. 10, 1962.

Syllabus by the Court

1. In prosecution for Operating an Open Saloon the admitting in evidence over defendant's objection, search warrant on which it was issued was reversible error.

2. Evidence of a separate and distinct offense is not admissible unless it shows: (1) Motive, (2) Intent, (3) Absence of mistake or accident, (4) Identity of the person charged with the commission of the crime for which an accused is put on trial and (5) Common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other.

3. In the trial of all indictments, informations and complaints and other proceedings against persons charged with the commission of a crime, offense or misdemeanor before any court or committing magistrate in this state, the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial; if commented upon by counsel, it shall be ground for new trial. Title 22 § 701 O.S.A.

4. It is error for the trial court to comment on defendant's failure to take the witness stand in his own behalf or to refer to it in any manner in the court's instructions, but the error is not so fundamental in character to require reversal unless timely objection is made to the giving of such instruction and exceptions taken thereto and raised by the defendant in his motion for a new trial as a ground for granting the same.

5. The Court of Criminal Appeals condemns the giving of any instruction relating to the failure of an accused to testify in his own behalf.

6. There is no rule or reason why a court should not ask a proper and pertinent question, for the purpose of eliciting competent and material testimony. But we also know of no rules that would permit the court to assume the role of prosecutor. And when the court takes the place of the County Attorney, and examines and cross-examines witnesses, no matter what his motive may be, or what explanation or excuse he may offer for this course, his conduct can have but one effect upon the jury, and that is to impress them that the judge is convinced of the defendant's guilt. In the minds of the jurors, it places the judge in a hostile attitude towards the defendant, and discredits any defense that he might offer. No judge has the right to indicate to the jury, by word or action, his opinion of the mertis of any case being tried before him, or to in any way indicate his opinion as to the credibility of any witness examined. Absolute fairness should characterize every word and action of a judge.

7. The words 'open saloon' shall mean: Any place, public or private, wherein alcoholic beverage is sold or offered for sale, by the drink; or, sold, offered for sale, or kept for sale or consumption on the premises. Art. 27, Okla.Constitution, Section 4.

8. An accused charged with operating an open saloon in Violation of Article 27, Section 4, may introduce competent evidence tending to establish that intoxicating liquor maintained, kept or stored on the premises belonging to him or under his control is the property of others and is not kept, stored, or maintained on the premises with the intention to sell same.

9. Under the provisions of Article 27, Section 4, of the Oklahoma Constitution, before the State can make a prima facie case, it is necessary to prove: (1) that the accused is the owner or operator of any place where intoxicating liquor is (2) sold or offered for sale, by the drink; or (3) kept for sale, for consumption on the premises.

Appeal from the County Court of Mayes County: Creekmore Wallace, Judge.

Robert L. Brannin was convicted of the crime of operating an open saloon, and appeals. Reversed and remanded for further proceeding consistent with this opinion.

Carl W. Longmire, Pryor, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., San H. Lattimore, Asst. Atty. Gen., for defendant in error.

BUSSEY, Judge.

Robert L. Brannin, plaintiff in error, hereinafter referred to as defendant, was charged, tried and convicted in the County Court of Mayes County with the offense of Operating an Open Saloon in violation of Art. 27, Okl.Constitution, Sec. 4, the pertinent part thereof being, 'The words 'open saloon' shall mean: Any place, public or private, wherein alcoholic beverage is sold or offered for sale, by the drink; or, sold, offered for sale, or kept for sale, for consumption on the premises'. From the judgment and sentence of conviction, a timely appeal was perfected to this court.

According to the evidence adduced at the trial, around nine o'clock on the evening of November 24, Deputy Sheriff Fred Grimes, Mayes County, Earl Guyeau of the Pryor Police Department and two representatives of the ABC Board went to the Green Door Tavern located at Langley, Mayes County, Oklahoma. There Sheriff Grimes served a search warrant upon defendant's wife, defendant being absent at the time of the officer's arrival.

Upon searching the premises, officers found '9-piece Bottles 1/5 assorted liquors and gin'. While the search was in progress, defendant entered the tavern and he, his wife, and the bar maid were arrested.

State's witness Earl Guyeau testified that he had not purchased any intoxicating liquor nor did he see anyone drinking on the premises and further, that no full bottles of liquor were found. And over the objection of defendant, witness Eskrine Brooks testified that some eight months prior he had purchased mixed drinks at the establishment from a bar maid, and that a charge was filed against defendant who entered a plea of guilty.

Over the objection of defendant, the search warrant describing the premises and the defendant as the owner and operator thereof was admitted into evidence.

Defendant's wife testified that she owned and operated the Green Door, and over the sustained objection of the State, that the establishment was a private club to which entry could be gained by a card key device. She further testified that she told officers during the search that the warrant was not made out to her and that the piece bottles confiscated by the officers were not owned by defendant. On the night in question, after securing permission from the officers, she had called the defendant at the service station which he owned and operated in Langley, telling him of the search and after said call, defendant came to the Tavern.

The defendant sought to prove the ownership of some of the bottles in question, but the offer was denied by the court when an objection by the state was interposed.

It is seldom that so many meritorious assignments of error are presented to this Court in one case, and we will discuss only those which standing alone substantially affected the defendant's rights.

The first reversible error was committed by the trial court, when, over the objection of counsel for defendant, the state was allowed to introduce the search warrant into evidence. It has been repeatedly held by this Court that it is reversible error to introduce search warrant and affidavit for same over the objection of defendant. This is particularly true under the facts of the instant case. Here the evidence discloses, the accused was not on the premises at the time of the search and seizure of intoxicating beverages.

It is necessary in order to establish a prima facie case that the defendant be connected with the operation of the premises in question by competent evidence reasonably tending to establish that fact. This being true we are of the opinion that the rule set forth in Wallace v. State, 89 Okl.Cr. 365, 208 P.2d 190, and supported by the authorities therein cited, is applicable here.

In Wallace v. State, supra, this Court said in Syllabus 4:

'In prosecution for unlawful possession of intoxicating liquor, admitting in evidence over defendant's objection search warrant and affidavit on which it was issued was reversible error.'

The next reversible error committed by the Court was committed when over the objection of the defendant and as a part of the state's case in chief, the following questions were propounded and answers received (CM 16-19):

'Q. Had you ever been in that place of business any time during the year 1961?

'A. I have.

'Q. When was that date?

'A. It was the evening of March 9, 1961.

'Q. And did you go to the Green Door?

'Objection by counsel for defendant. Overruled. Exception.

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'Q. How many drinks were you served that night * * *?

'A. Each of us bought a drink. I believe that if I am not in error I paid for the drinks--three for a dollar and a half.

'Q. You paid for the drinks?

'A. Yes sir.

'(Objection. Overruled, Exception. Allowed.)

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'Q. And was Mr. Brannin present that night?

'A. Yes sir.

'Q. Do you know Mr. Bob Brannin?

'A. Yes sir.

'Q. Do you see him here?

'A. Seated across the table from you.

'Q. Who was waiting on the bar that night?

'A. A bar maid, her given name was Faye, I don't recall her last name.

'Q. Do you know after you bought the drinks what happened then?

'A. We arrested the bar maid and Mr....