Brickey v. State
| Decision Date | 11 May 1934 |
| Docket Number | A-8700. |
| Citation | 32 P.2d 743,55 Okla.Crim. 451 |
| Parties | BRICKEY v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. The instructions of the court correctly state the law applicable to the facts.
2. The evidence is sufficient to sustain the judgment.
Appeal from County Court, Payne County; Henry W. Hoel, Judge.
O. B Brickey was convicted of the crime of having possession of intoxicating liquor, and he appeals.
Affirmed.
Walter Mathews, of Cushing, for plaintiff in error.
J Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen (Hester Atherton Gifford, of Oklahoma City, of counsel), for the State.
The plaintiff in error, hereinafter referred to as the defendant, was convicted of having possession of intoxicating liquors and sentenced to pay a fine of $50 and be confined in the county jail for a period of thirty days.
The testimony of the state shows the officers went to defendant's home with a search warrant and found six pints of whisky. The defendant, testifying in his own behalf, denied he had six pints of whisky in his home, and states that the officers came to his home about five minutes to 12 o'clock on Sunday night; that he had between a half pint and a pint of whisky in a dresser drawer that had a false bottom to it; and positively denies the officers took any whisky out of his house.
The defendant in his assignment of errors alleges the trial court erred in overruling his motion for a new trial, the court erred in refusing to give his requested instruction No. 1, and the court erred in giving its instruction No. 7.
The only error discussed by the defendant is that the court erred in giving instruction No. 7, which instruction is as follows "You are further instructed that the having and keeping in excess of one quart of any spirituous, vinous, fermented or malt liquors shall be deemed prima facie evidence of an intention to convey, sell or otherwise dispose of said liquor, and you are also instructed that if you should find beyond a reasonable doubt that on or about the 24th day of July, 1933, that the defendant O. B. Brickey had in excess of one quart of spirituous, vinous, fermented, or malt liquors, that the possession of such liquor, if you should find the defendant had the possession of the same, would be sufficient to establish an unlawful intent, unless rebutted or the contrary proved, yet it does not make it obligatory upon you to convict after the presentation of such proof, but...
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Hughes v. State
...given of 'prima facie evidence' is faulty, in that it places on the defendant the burden of rebutting the unlawful intent.' In the Brickey case [55 Okl.Cr. 451, 32 744], the judgment of the court was affirmed, but the instruction considered contained this provision: '* * * would be sufficie......
- Morse v. State