Files v. State
| Decision Date | 10 May 1919 |
| Docket Number | A-3063. |
| Parties | FILES v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Rehearing Denied Sept. 6, 1919.
Syllabus by the Court.
Where the question of the presence of the defendant at his trial for felony is not raised in the lower court, it cannot be raised on appeal to this court, unless the record affirmatively shows that the defendant was not present at such trial.
Where in a prosecution for a second violation of the prohibitory liquor laws, record evidence of a former conviction is offered in evidence of one of the same name as that of the defendant on trial, it is not necessary for the state to prove that the person named in said former conviction and the defendant on trial is one and the same person.
Where an illegal sale of beer is made in a place, it is immaterial as to who is the proprietor of the place in which the sale is made, or that the person making such sale is not interested therein. The offense is established upon legal proof of a sale by the party making such sale, regardless of the proprietorship of the place in which the sale is made.
In a prosecution for a felony, it is not required that the information therefor, under the Procedure Criminal of this state, be verified.
Demurrer to the evidence is not the proper practice to attack the sufficiency of the evidence-if the evidence is thought to be insufficient a directed verdict should be requested.
It is improper to ask a witness on cross-examination "if he has not been arrested and confined in jail for a crime."
The record in this case carefully examined, and the evidence found sufficient to reasonably sustain the verdict and judgment rendered, and the record free from error.
Additional Syllabus by Editorial Staff.
In a prosecution for a second violation of the prohibitory liquor laws, the refusal to permit defendant, on cross-examination of prosecuting witness, to ask if he was not paid to secure evidence in the case, intended to show witness' interest was error.
In such prosecution, error in excluding defendant's question to prosecuting witness on cross-examination as to whether he was not paid to secure evidence was harmless, where defendant's testimony so corroborated that of witness as to make his interest immaterial.
Appeal from District Court, Garfield County; James B. Cullison Judge.
Bert Files was convicted of a violation of the habitual criminal act, and he appeals. Affirmed.
W. O. Cromwell, of Enid, for plaintiff in error.
S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
The plaintiff in error, Bert Files, hereinafter styled defendant, was convicted of a second violation of the prohibitory liquor law, convicted and sentenced to serve a term of two years in the penitentiary at McAlester, Okl., "no part of which time shall be in solitary confinement," and to pay a fine of $50 and the costs of this prosecution. To reverse the judgment rendered he prosecutes this appeal.
The information under which the defendant was convicted charges the defendant with having been three times previous to the filing of the information in the instant case convicted and sentenced in Garfield county, which said convictions each became final before the year 1916-of violations of the prohibitory liquor laws; and that on the 11th day of March, 1916, in Garfield county, did unlawfully sell to one G. C. Todd, a bottle of beer. The defendant did not in his brief assign as error, or argue the insufficiency of the said information.
The evidence as to the previous convictions of the defendant, and which we deem unnecessary to recite, fully sustains the averments of the information as to such prior convictions.
The material evidence as to the sale of the bottle of beer alleged to have been sold by the defendant to Todd on the 11th day of March, 1916, is, on the part of the state, that said Todd, accompanied by another, bought from the defendant, at the time alleged in the information, in a place in the city of Enid, in Garfield county, which had the reputation of being a place where intoxicating liquors were sold, a bottle of beer which was labeled "Schlitz or Budwiser," and paid him 50 cents for same; that Todd and the person with him jointly drank the contents of said bottle in the said place.
The material evidence of the defendant was: That he was not the proprietor of the place in which Todd testified he bought said bottle of beer; that Walt Cook was; that he resided in Muskogee county, and was on a visit to Enid, and was taking care of the place for Walt Cook; that he did sell to said Todd "a bottle of stuff" which he did not know was beer; that Todd paid him for same, the amount not remembered; and that he gave the money to Cook, and that he had no interest in the bottle sold to Todd.
The defendant also introduced evidence tending to impeach the veracity of Todd, to which counter evidence was introduced by the state.
Upon the conclusion of the evidence for the state the defendant demurred to the evidence, which the court overruled, and the defendant excepted.
The contention of the defendant that the judgment and sentence is irregular and void, because the judgment entry recites that the former conviction was "for maintaining a place," is without merit; a record of such former conviction of the defendant being averred in the information, and supported by record evidence.
The defendant attacks the information because the same is not verified, and therefore insufficient to support a judgment. This is an information for a felony, and not required to be sworn to. In re Talley, 4 Okl. Cr. 398, 112 P. 36, 31 L. R. A. (N. S.) 805.
The question of former jeopardy raised by the defendant was properly held adversely to the defendant, as the same was precluded by the decision of this court in Ex parte Bert Files, 13 Okl. Cr. 163, 162 P. 1136. It follows that the court did not err in not submitting the plea of former jeopardy to the determination of the jury.
The plea...
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