Cornett v. State, A-11626

• Decision Date: 29 October 1952
• Docket Number: No. A-11626,A-11626
• Citation: 250 P.2d 55,96 Okla.Crim. 125
• Parties: CORNETT v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 55

250 P.2d 55

96 Okla.Crim. 125

CORNETT v. STATE.

No. A-11626.

Criminal Court of Appeals of Oklahoma.

Oct. 29, 1952.

Syllabus by the Court

1. The question as to the alleged insufficiency of an information raised for the first time on appeal will not be considered unless the information is so fundamentally erroneous that it wholly fails to state any facts sufficient to charge a crime so as to give the court jurisdiction to try the accused.

2. In an information charging the illegal possession of intoxicating liquor the pleader should set forth facts constituting a violation of the law and not mere legal conclusions.

3. Where subpoenas are issued and served on day prior to trial the witnesses were legally bound to attend the trial and trial court committed error in refusing to issue attachments for the absent witnesses upon request of counsel for defendant. The question of counsel's delay in issuance of the subpeonas would not justify the court in refusing to order attachments issued where the subpoenas were actually served on the witnesses named in the subpoenas the day before the trial commenced.

4. A judgment of conviction will not be reversed on account of the alleged insufficiency of the evidence to sustain the verdict where there is any competent evidence in the record from which the jury could reasonably conclude defendant was guilty.

5. Certified copy of federal retail liquor dealer's license was admissible in evidence as bearing on the intent with which liquor was allegedly possessed and for purpose of connecting accused to control of premises described as the location of his business in the liquor license.

6. Where all of the evidence of the state is circumstantial, the court should give an instruction on circumstantial evidence, and his failure so to do upon request by counsel for the defendant constituted reversible error.

Sam S. Gill, Homer Caldwell, Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., L. A. Wallace, Ass't Atty. Gen., for defendant in error.

JONES, Judge.

The defendant, J. Weldon Cornett was charged by an information filed in the Court of Common Pleas of Oklahoma County with the crime of unlawful possession of intoxicating liquor, was tried, convicted, found guilty by verdict of the jury who left the punishment to be fixed by the court. Thereafter the accused was sentenced to serve sixty days in the county jail and pay a fine of two hundred fifty dollars, and has appealed.

The following assignments of error are presented: 1. The information failed to state any offense. 2. The trial court committed error in refusing a continuance. 3. The Federal retail dealer's stamp was inadmissible because not identified as belonging to the defendant. 4. The trial court erred in refusing to instruct on circumstantial evidence. 5. The evidence is insufficient on which to base a conviction.

We shall consider these assignments in the order in which they are presented.

No challenge was interposed to the information by demurrer, or in any other manner, and the question as to the alleged sufficiency of the information is raised for the first time on appeal. It was not set up as one of the alleged errors in the motion for new trial. Under such circumstances, unless the information is so fundamentally erroneous that it wholly fails to state any facts sufficient to charge a crime so as to give the court jurisdiction to try the accused, this assignment may not be considered. Brannon v. State, Okl.Cr.App., 234 P.2d 934. The information charged that defendant:

'unlawfully had possession of intoxicating liquors, to-wit: Twenty-three (23) pints of tax paid liquor and two (2) 4/5th quarts of tax paid liquor.'

It would have been better pleading for the county attorney to have specifically stated the nature and kind of intoxicating liquor possessed by the accused, that is whether it was whiskey, which this court states is per se intoxicating, or some other alleged intoxicant. However the information in general terms does state that the accused had possession of intoxicating liquors and we think it is sufficient to confer jurisdiction on the trial court to try the accused for the illegal possession of intoxicating liquors. If the information had been challenged by demurrer the court would probably have directed the county attorney to file an amended information specifically setting forth the nature and description of the intoxicants allegedly possessed by the accused.

In connection with the second assignment of error, concerning the refusal of the court to grant the accused a continuance, there is joined with it the alleged error of the court in refusing to issue an attachment for two witnesses which had been duly subpoenaed by the accused. The attorney general has confessed error in connection with this assignment of error and also with the alleged assignment of error that the court committed error in refusing to give an instruction on circumstantial evidence.

The witnesses subpoenaed by the defendant were Ted Dobkins and Roy Nicholson. Counsel for the accused asked the court to issue attachments for these two witnesses, which request was refused. In their motion for continuance counsel for the accused state that if Dobkins were present as a witness he would testify that he had charge of the Highland Club, (which was the place raided by the officers and was where the intoxicating liquors were found), from January 1, 1951 continuously up to and including the night when the raid was made on January 6, 1951; that defendant was not at any time on the premises during said period of time and was not there at the time the raid was made and that the witness knows positively defendant did not put the whiskey on the premises.

In the motion it was further alleged that the witness Roy Nicholson would testify that he was a deputy sheriff of Oklahoma County for two years; that he was familiar with the Highland Club; that he had been to the place on a number of occasions; that he had never seen any whiskey, and had never found any whiskey at the place and had never heard of the defendant...