High v. State

• Decision Date: 29 March 1909
• Citation: 101 P. 115,2 Okla.Crim. 161,1909 OK CR 45
• Parties: HIGH et al. v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

101 P. 115

2 Okla.Crim. 161, 1909 OK CR 45

HIGH et al. v. STATE.

Court of Criminal Appeals of Oklahoma

March 29, 1909

Syllabus by the Court.

The presumption of innocence of one on trial for a crime is one of fact and of law, and no person can be convicted, even under a joint information, without proof of his individual guilt.

[Ed Note.-For other cases, see Criminal Law, Cent. Dig. § 731; Dec. Dig. § 308. ^[*]]

Where a defendant pleads not guilty and admits nothing against himself, the burden of proof is on the state to make a case against him which will entitle it to go to a jury; and, where the evidence only raises a mere suspicion of the guilt of the accused, it is insufficient to warrant a conviction, and the court should direct a verdict of acquittal, when requested by defendant.

[Ed Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1713 1727; Dec. Dig. § 753. ^[*]]

Under subdivision 3 of section 8, art. 1, of the Constitution of the United States, a resident of this state has a lawful right to order and receive a shipment of whisky by interstate commerce from another state, and to convey the same from the depot at which the shipment may arrive, in the original package to his home.

[Ed Note.-For other cases, see Commerce, Cent. Dig. §§ 30, 31; Dec. Dig. § 41. ^[*]]

The clause in the prohibition ordinance of the Constitution of the state of Oklahoma (section 499, Bunn's Ed.), while prohibiting the conveyance of intoxicating liquors from one place within this state to another place therein, has no application to interstate shipments until there has been a delivery of an interstate shipment of said liquors.

[Ed. Note.-For other cases, see Commerce, Cent. Dig. §§ 30, 31; Dec. Dig. § 41. ^[*]]

Carrying or conveying intoxicating liquors from the railroad station to the home of the consignee is a part of the interstate commerce transportation, when they were shipped from another state, and is not a violation of the constitutional clause making the conveyance of such liquors from one place within this state to another place therein an offense.

[Ed. Note.-For other cases, see Commerce, Cent. Dig. §§ 30, 31; Dec. Dig. § 41. ^[*]]

The constitutional clause prohibiting the conveyance of intoxicating liquors from one place within this state to another place therein, in the absence of prohibitory legislation by the state, is not within the scope and operation of the act of Congress of August 8, 1890, c. 728, 26 Stat. 313 (U. S. Comp. St. 1901, p. 3177), commonly known as the "Wilson Act."

[Ed. Note.-For other cases, see Commerce, Cent. Dig. §§ 30, 31; Dec. Dig. § 41. ^[*]]

Error from Kiowa County Court; J. W. Mansell, Judge.

Webb High and others were convicted of unlawfully conveying intoxicating liquor from one point within the state to another, and they brought error to the Supreme Court of the state of Oklahoma, whence the cause was transferred to the Criminal Court of Appeals. Reversed and remanded with direction.

The plaintiffs in error (hereinafter designated as defendants) were, on March 31, 1908, convicted in the county court of Kiowa county on an information, the charging part of which reads as follows: "That on the 18th day of March, A. D. 1908, at and within the said county and within the jurisdiction of said court, Webb High, Curley Bradley, Harry Whittemore, and George Broughton, then and there being, did, then and there unlawfully convey intoxicating liquors to wit, one hundred pints of whisky from one place within the state of Oklahoma to another place within the state of Oklahoma, to wit, from the Rock Island Depot at Mountain View, said county and state, to a point near the Chickasha Mill and Elevator Company's Elevator at Mountain View, said county and state. Said conveyance of intoxicating liquor as aforesaid not being then and there the conveyance of a lawful purchase of intoxicating liquor as provided by law." The information was filed before the enactment of the prohibitory law, and was based upon that clause of the Constitution (section 499, Bunn's Ed.) which provides: "Or who shall ship or in any way convey such liquors from one place within this state to another place therein except the conveyance of a lawful purchase as hereinafter authorized, shall be punished on conviction thereof, by fine not less than fifty dollars and by imprisonment not less than thirty days for each offense."

Three witnesses testified on behalf of the prosecution. Bob Allen, a deputy sheriff, testified that he arrested the defendants and made the seizure on the evening of March 18, 1908, on the public road, about 150 feet from the Rock Island Depot, at Mountain View, without any warrant or other process, asserting his right to do so by virtue of the foregoing clause of the Constitution, at which time all of said defendants were riding on a delivery wagon from the depot towards the town; that in said delivery wagon was a barrel which looked like a sugar barrel; that he had seen said barrel at the depot and examined it, and it smelled like whisky; that said barrel, when opened, was found to contain 100 pints of whisky. The testimony of F. W. Fanson, railroad and express agent at Mountain View, shows that the defendant Whittemore, on March 14, 1908, purchased an express money order for the sum of $36 payable to Casey & Swasey, of Ft. Worth, Tex.; that on the 18th day of March, 1908, he received said barrel as railroad agent, the same having been shipped from Ft. Worth, Tex., to the name of W. M. Silvers, and was received by the defendant Whittemore, he signing the name of W. M. Silvers to the express receipt and paying express charges of $3.40; that the defendant Broughton (drayman) was standing by when he delivered the barrel to said defendant Whittemore.

The testimony of D. George Jones is not material to any issue in the case.

The defendants testified in their own behalf, in substance, as follows: The defendant Harry Whittemore testified that he purchased an express money order for the sum of $36, payable to Casey & Swasey, of Ft. Worth, Tex., from the agent of the Rock Island Railroad & Express Company at Mountain View, Okl., on the 14th day of March, 1908; that said money order was by said defendant forwarded to the payee at Ft. Worth, Tex., together with an order for 48 quarts of whisky; that said whisky was shipped from Ft. Worth to Mountain View packed in a barrel, and was there received on the 18th day of March, 1908; that he paid the express charges thereon, and hired the defendant Broughton (a drayman) to haul it to his home; and that he purchase said whisky for his own use, and no other person had any interest in it. The defendant Broughton testified that he was running a delivery wagon at Mountain View, and was hired by the defendant Whittemore to haul said barrel from the depot to his home, and that he did not know at that time what said barrel contained. The defendants Webb High and Curley Bradley testified that they were at the depot and caught a ride to town in the delivery wagon; that Deputy Sheriff Allen, about 150 feet from the depot, stopped the wagon, arrested the defendants, and seized a barrel that was in the wagon; that they in no way assisted to load or convey the barrel, and that they knew nothing about the barrel or its contents.

The testimony shows that there was nothing to indicate the contents of the barrel, and that it resembled a sugar barrel. The defendants were placed in jail, and the next day were taken to Hobart, and the information in this case was filed. Defendants were arraigned, and entered pleas of not guilty. The petition in error and case-made was filed in the Supreme Court July 30, 1908, and said cause was, upon the organization of the Criminal Court of Appeals, duly transferred by the Supreme Court, as by law provided, and is now before the court for review.

Thos. W. Connor and O. J. Logan, for plaintiffs in error.

Fred S. Caldwell, for the State.

DOYLE J.

It is contended by counsel for defendants "that the verdict and judgment of guilty in said case is not sustained by the evidence, and is contrary to law."

At the close of taking of the testimony, defendants, and each of them, requested the court to direct a verdict of acquittal as to each of said defendants, on the ground that the evidence was insufficient to support a conviction. The court refused to so direct the jury, and allowed exceptions. Under the facts which the evidence in this case proved, or tended to prove, we believe the court should have directed an acquittal as requested. The record clearly shows that the defendants Webb High and Curley Bradley were only riding on the wagon in which the whisky was being conveyed; that they had no interest or ownership in the whisky, no knowledge that it was whisky, and that they took no part in the conveyance. It further shows that the defendant George Broughton (a drayman) was conveying the barrel that contained the whisky as he would any other article for hire. His testimony that he did not know its contents is undisputed.

As to the defendant Harry Whittemore, the record presents a question involving the construction of that clause of the Constitution (section 499, Bunn's Ed.) which is set forth in the statement of facts, as affecting interstate commerce in shipments of intoxicating liquor. The question is, was the defendant Whittemore, in the removal of the whisky from the depot to his home, engaged in conveying it within the purport and meaning of said clause of our Constitution?

In construing the language of said clause, it is well to remember that it was framed to meet the requirements of the prohibition paragraph of the enabling act (Bunn's Ed. p 144, § 507). Reference to said paragraph shows that the only language therein regarding the...