Kuhn v. State

• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Citation: Kuhn v. State, 111 P.2d 823, 71 Okla.Crim. 351 (Okla. Crim. App. 1941)
• Decision Date: 19 March 1941
• Docket Number: A-9779.
• Parties: KUHN v. STATE.

111 P.2d 823

71 Okla.Crim. 351

KUHN v. STATE.

No. A-9779.

Court of Criminal Appeals of Oklahoma

March 19, 1941

Syllabus by the Court.

Where the evidence on the part of the state reveals that the officers found only two half pints of intoxicating liquor this is not a sufficient amount to make a prima facie case and where the state fails to introduce any further evidence in an attempt to establish the unlawful intent, the court should have instructed the jury to return a verdict for the defendant.

Appeal from County Court, Coal County; W. B. Thornsbrough, Judge.

Johnnie Kuhn was convicted of the crime of unlawful possession of intoxicating liquor, and he appeals.

Reversed.

Mac Q Williamson, Atty. Gen., and Marvin Balch, Co. Atty., of Holdenville, for the State.

H. M. Shirley, of Coalgate, for defendant.

BAREFOOT Presiding Judge.

The defendant was charged in the County Court of Coal county with the crime of unlawful possession of intoxicating liquor, was tried, convicted and sentenced to pay a fine of $50 and to serve thirty days in the county jail and has appealed.

This case arose by reason of a search of the premises of the defendant in the city of Coalgate on the 21st day of January 1939, by the sheriff of Coal county and two of his deputies. The defendant represented himself at the trial and did not have an attorney. The case was tried by five jurors by agreement. The sheriff and his deputies testified that they had search warrants for the purpose of searching the restaurant and filling station of the defendant in the city of Coalgate. The search of the restaurant resulted in not finding any liquor. The officers then went in the alley to the north of the filling station, and while there saw the defendant come out the back door of the filling station and throw two half pints of whiskey out in the direction where the officers were standing. They recovered these two half-pint bottles, which were introduced in evidence. The search warrants were not introduced in evidence and no other evidence was introduced by the State. We are of the opinion that it was insufficient to convict the defendant, and the court should have so instructed the jury. The amount of whiskey found was less than a quart. Under the law the possession of less than a quart raised no prima facie intent on the part of the defendant to sell, give or otherwise dispose of the liquor in violation of law. 1933 Session Laws,...