Cox v. State

• Decision Date: 07 December 1909
• Citation: 105 P. 369,3 Okla.Crim. 129,1909 OK CR 135
• Parties: COX v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

105 P. 369

3 Okla.Crim. 129, 1909 OK CR 135

COX v. STATE.

Court of Criminal Appeals of Oklahoma

December 7, 1909

Syllabus by the Court.

A petition for a rehearing based upon the ground that a controlling decision which was not called to the attention of the court is in conflict with the decision of which a rehearing is sought must show that such conflict exists.

On motion for rehearing. Motion denied.

Elliott & Howard, for appellant.

PER CURIAM.

Rule 9 of this court (101 P. ix) governs applications for a rehearing. It is as follows: "(1) Application for a rehearing in any cause, unless otherwise ordered by the court, shall be made by a petition to the court signed by counsel and filed with the clerk within fifteen days from the date on which the opinion in the cause is filed. Such petition shall briefly state the grounds upon which counsel relies for a rehearing, and show either that some question decisive of the case and duly submitted by the counsel has been overlooked by the court, or that the decision is in conflict with an express statute or controlling decision, to which the attention of the court was not called, either in brief or oral argument, or which has been overlooked by the court, and the question, statute, or decision so overlooked must be distinctly and particularly set forth in the petition. If such application is granted the cause shall be assigned for rehearing, and the clerk shall notify both parties or their counsel of the time when such will be had, and such time may be given for argument or brief as the court shall allow."

The petition for a rehearing is as follows: "Comes now B. C Cox, the appellant in the above-entitled cause, and most respectfully shows the court: That on the 2d day of November 1909, a decree and judgment was rendered by this honorable court against this appellant, affirming a judgment and sentence of the county court of Rogers county, Okl., wherein the said county judge of Rogers county did on the 9th day of March, 1908, duly sentence this appellant to 60 days' imprisonment in the county jail of Rogers county, and to pay a fine of $400 upon a charge of the unlawful sale of intoxicating liquors charged to have been sold on or about January 23, 1908, in Rogers county, Okl. (1) That said decision affirming the judgment and sentence of the county court of Rogers county against this appellant overlooked the decision of this honorable court in the case of Titsworth v. State, 101 P. 288, which said case is controlling in this case, and wherein this honorable court lays down the following rule: It is the present opinion of the writer that in cases against defendants for keeping intoxicating liquors for sale the general reputation of such places, in the community in which they are situated, touching this point, is admissible in evidence, just as it is permissible to prove a general reputation of a bawdyhouse, a gambling house, or of any place which constitutes a nuisance. Section 14, art. 3 of the enforcement act (page 608, c. 69, Sess. Laws 1907-08) expressly makes such places where liquors of any kind are sold, manufactured, bartered, or given away or otherwise disposed of in violation of the law nuisances. ...