Lemka v. State
| Citation | 241 P. 832,33 Okla.Crim. 34 |
| Decision Date | 23 December 1925 |
| Docket Number | A-5356. |
| Parties | LEMKE v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Where circumstantial evidence is relied on for conviction, it must be of such a character that it leads to but one fair and reasonable conclusion, pointing to the defendant to the exclusion of all others as the guilty person.
Circumstantial evidence held insufficient to sustain conviction of illegal possession of intoxicating liquor.
Appeal from County Court, Washita County; H. C. Hubbard, Judge.
John Lemke was convicted of illegal possession of intoxicating liquor, and he appeals. Reversed and remanded, with direction.
Massingale & Duff, of Tulsa, for plaintiff in error.
The Attorney General, for the State.
Plaintiff in error, John Lemke, by the verdict of a jury, was found guilty of illegal possession of intoxicating liquor, and his punishment fixed at a fine of $100 and confinement in the county jail for 30 days. To reverse the judgment rendered in accordance with the verdict, he appeals.
Of the numerous errors assigned, we deem it only necessary to consider the one, that the evidence is insufficient to sustain the verdict.
W. H Dean, sheriff, testified that he found the whisky which was introduced as evidence about 150 yards from the defendant's house, on the south side of the section line from the defendant's house, but not on the premises of the defendant; that the jars containing the whisky were buried in the sand.
Two witnesses testified that they were sawing logs on the creek which passes near the section line intersection; saw the defendant walking along the section line tramping weeds; that he came up to where they were at work and asked them if they had seen any eggs around there.
J. H Standerfer, deputy sheriff, testified that he was with the sheriff and they searched the defendant's premises and did not find any whisky, but did find some fruit jars containing whisky buried in the sand on the section line on the south side from his house.
At the close of the state's evidence, there was a motion by the defendant for a directed verdict, on the ground that the evidence was insufficient to connect him with the alleged offense, in the form of a demurrer to the evidence, which was overruled.
As a witness in his own behalf, John Lemke testified that his house is between 200 and 300 yards north of the section line where the...
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