Lunsford v. State

• Decision Date: 14 May 1932
• Docket Number: A-8336.
• Citation: 11 P.2d 539,53 Okla.Crim. 305
• Parties: LUNSFORD v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

11 P.2d 539

53 Okla.Crim. 305

LUNSFORD v. STATE.

No. A-8336.

Court of Criminal Appeals of Oklahoma

May 14, 1932

Syllabus by the Court.

1. The question of whether the case rests entirely upon circumstantial evidence is a question of law for the court and not a question of fact for the jury.

2. The question of flight is one of fact and not of law, and, where the question is controverted, the court in its instructions should not assume that defendant fled, but, if any instruction upon the question of flight is given, it should be submitted to the jury as a question of fact.

3. All instructions given to the jury should be in writing. Instructions partly in writing and partly oral should be avoided.

Appeal from County Court, Canadian County; E. F. Thompson, Judge.

Lee Lunsford was convicted of the possession of a still, and he appeals.

Reversed and cause remanded.

W. M Wallace and Fred Wallace, both of El Reno, for plaintiff in error.

J Berry King, Atty. Gen., for the State.

EDWARDS J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Canadian county of having the possession of a still and was sentenced to pay a fine of $500 and to serve six months in the county jail.

Certain officers discovered a still on the premises of one Warren. They laid in wait for a day or more until defendant came to the place, and, according to the state's testimony, put his hand on a part of the still, picked up a sack from a barrel of mash, shook it and placed it over the barrel, and when the officers made their presence known, he started to run. Defendant testified he had been told by Warren that a still had been placed on his place, and that he went with Warren to search for the still; that they had separated; that he discovered the still and while looking at it the officers came up; that he was not nearer to it than five or ten steps and knew nothing of it until he discovered it.

Several assignments of error are argued; among others, that the evidence is insufficient. There is ample competent evidence, and, if the record disclosed that the case was fairly tried, the judgment would be sustained.

The court erred in his instruction on circumstantial evidence. The instruction appears to leave the question of whether the case rests on circumstantial evidence to the jury, the court, in part, saying: "You are instructed that if you find beyond a reasonable doubt from the evidence that the defendant exercised some actual physical control over the still, that is that he arranged the sack on the mash barrel or otherwise worked with the still so as to evidence control over same, then the state's case is based upon direct evidence and if you find the defendant had such possession as charged, beyond a reasonable doubt you should convict him. However in this regard, if you find the defendant was merely at the location of the still and exercised no actual control over it then the state's case rests on what is known as circumstantial evidence, and in this connection you are instructed, * * *" etc.

Whether the case rests upon circumstantial evidence or not is not a question for the...