Markinson v. State
| Decision Date | 01 May 1909 |
| Citation | 101 P. 353,2 Okla.Crim. 323,1909 OK CR 60 |
| Parties | MARKINSON v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Where the record in a misdemeanor case does not disclose that the defendant was arraigned and pleaded, the arraignment and plea will be presumed; and, unless there is in the record that which shows affirmatively their absence, and where objection is made for the first time in this court, it will not be considered.
[Ed Note.-For other cases, see Criminal Law, Cent. Dig. § 3019; Dec. Dig. § 1144. [*]]
The words "intoxicating liquors," as used in the prohibition ordinance of the Constitution, reasonably construed, mean liquors which will intoxicate, and which are commonly used as beverages for such purpose, and also any and all mixtures, compounds, or substitutes for such liquors used as a beverage, that possess intoxicating qualities.
[Ed Note.-For other cases, see Intoxicating Liquors, Dec. Dig. § 132. [*]
For other definitions, see Words and Phrases, vol. 4, pp 3736-3746; vol. 8, p. 7692.]
Said prohibition ordinance designates beer, ale, and wine as intoxicating liquors, and the courts will take judicial notice that beer is an intoxicating liquor.
[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 716; Dec. Dig. § 304. [*]]
It is competent to prove the intoxicating or nonintoxicating qualities of any substitute for ordinary intoxicating liquors, by the experimental effect of its use, or by any witness who is shown to have had an opportunity of personal observation, or of experience sufficient to enable him to form a correct opinion.
[Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 452. [*]]
See evidence in statement of facts. Held not sufficient to sustain a conviction for violation of a provision of the prohibition ordinance of the Constitution.
[Ed. Note.-For other cases, see Intoxicating Liquors, Dec. Dig. § 236. [*]]
Error from Comanche County Court; James H. Wolverton, Judge.
C. H. Markinson was convicted of violating the liquor law, and brings error. Reversed and remanded.
C. H. Markinson, plaintiff in error (hereinafter designated defendant), was, on the 7th day of April, 1908, convicted of violating the prohibition ordinance of the Constitution, as charged in an information filed in said county court on the 19th day of November, 1907, wherein it was charged that on the 18th day of November, 1907, defendant did then and there, willfully and unlawfully, barter, sell, and give away one pint of beer to one Claud Small. Defendant was sentenced to pay a fine of $50, and be confined in the county jail of said county for a period of 30 days. On June 16, 1908, defendant filed his petition in error and case-made in the Supreme Court. Said cause was duly transferred to the Criminal Court of Appeals, as provided by law. At the March, 1909, term of this court said cause was submitted. The testimony on behalf of the prosecution is in substance as follows: Claud Small, the complaining witness, testified that he was acquainted with defendant and his place of business; that he conducted the Monarch Theatre in said city, and that on the 18th day of November, 1907, he went there and got a bottle of "All Hail," and drank another one; identified the bottle, the label on which read and stated that he got said bottle from the bartender. Asked whose place of business it was, he answered, "I don't know whether it was known as Chris' or Mike's place." He further stated that, from his experience and knowledge of beer, "All Hail is a bum kind of beer." On cross-examination he stated that "it tasted like beer," but that he "wouldn't swear it is." A. J. King testified that he was a lawyer; didn't remember ever having drunk any "All Hail," except that which he drank out of said bottle in the sheriff's office; that he had not drunk any beer for about 18 months, but prior to that time he had drunk all kinds of beer, and "don't remember of ever drinking anything like this," but said, "It is beer from the taste and smell of it." Dr. Starbuck testified that he was a physician and surgeon; tasted the bottle labeled "All Hail," and says in his judgment it is beer. On cross-examination, asked what is beer made of, he stated that "only God and the old lady knows" what beer is made of. A. J. Strickland testified that he was acquainted with the taste and smell of beer, and that he had sampled the bottle labeled "All Hail," and that, if it was beer, it was a poor grade. N.H. Brookover testified "used to drink" in his younger days; that he had taken some of the contents of the bottle labeled "All Hail," and that "it tastes and smells like beer." W. T. Herring testified that he was acquainted with the taste and smell of beer, had tasted the contents of this bottle, and he "would call it beer of some kind." S.E. Vivatie testified that he had taken a drink out of the bottle labeled "All Hail," and "it tasted like beer." Rufe Le Flors testified that he was sheriff of said county, that he had kept the bottle in his safe, and had sampled its contents, and that "it tastes and looks like beer." On behalf of defendant Dr. Gooch testified that he was a practicing physician and surgeon, and was familiar with what beer is, and of what it consists, and that he had drunk this so-called "All Hail," at the Monarch Theatre, and gave as his opinion that "All Hail is not beer." George McCrory testified that he had been engaged in the wholesale beer business for three years; had drunk all kinds of beer; that he had often drunk "All Hail," and testified that "it is not beer." A. D. Allen testified he was engaged in the wholesale cigar business; was familiar with all brands of beer, and had drunk "All Hail"; stated that it was something like beer, but that "it does not have the same effect as beer." A. W. Allen testified that he had used beer all his life, had "used a very little of 'All Hail,"' and that "I don't think it is beer." Robert Johnson testified that he was familiar with the taste and smell of beer, and had used "All Hail," and that "it is not beer, and it is not intoxicating"; that he had seen other persons drink as much as six or seven bottles of "All Hail," and it never made them drunk.
Al. J. Jennings, for plaintiff in error.
Fred S. Caldwell, for the State.
The first question that is presented by defendant for our consideration is that "defendant was never arraigned, or ever entered any plea, or was given any opportunity to plead." The record does not show that the defendant was arraigned and pleaded to the amended information. No objection appears to have been made upon this ground in the court below. The record shows that on ...
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