Miller v. State

• Decision Date: 14 September 1949
• Docket Number: A-10979.
• Citation: 209 P.2d 890,90 Okla.Crim. 14
• Parties: MILLER v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

209 P.2d 890

90 Okla.Crim. 14

MILLER v. STATE.

No. A-10979.

Court of Criminal Appeals of Oklahoma

September 14, 1949

Harry Miller was convicted of the unlawful possession of intoxicating liquor in the Court of Common Pleas of Tulsa County, Leslie W. Lisle, J., and he appealed.

The judgment was affirmed on appeal, 206 P.2d 245.

The Criminal Court of Appeals, Brett, J., on petition for rehearing reversed the judgment, holding that the giving of an instruction respecting possession of more than one quart of whiskey was reversible error, as imposing the burden of proof on the defendant.

Syllabus by the Court

An instruction which informs the jury that the possession of in excess of one quart of intoxicating liquor is prima facie evidence of an intention to barter, sell or otherwise dispose of the same contrary to law, and further contains this clause: 'The possession of more than one quart of whiskey is prima facie evidence of intent to sell but that such prima facie evidence may be rebutted by proof on the part of the defendant that there was no intent on his part to sell the same' without informing the jury that it does not make it obligatory upon them to convict unless they are satisfied beyond a reasonable doubt, after a consideration of all the evidence, of the guilt of the defendant, is error requiring the reversal of the case.

John L Ward, Jr., Tulsa, Elmore A. Page, Tulsa, for plaintiff in error.

Mac Q Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen Elmer Adams, Co. Atty., Tulsa County, Tulsa, for defendant in error.

BRETT Judge.

This matter comes on, upon petition for rehearing, the original opinion having been rendered on the 4th day of May, 1949 Miller v. State, Okl.Cr.App., 206 P.2d 245, 246, not yet reported in State reports.

In that opinion the judgment and sentence of the lower court was affirmed. Therein the late Judge Barefoot said: 'The only serious question raised by the defendant in his assignments of error is that the court erred in giving instruction No. 8.'

The said instruction reads as follows, to wit:

'No. 8: You are instructed that the amount of intoxicating liquor found in the possession of the defendant, if you find any was found in his possession, is a proper circumstance for you to take into consideration in connection with all the other facts and circumstances in the case, in determining whether or not it was the intent of the defendant to illegally dispose of said liquor in violation of the prohibitory liquor laws of the State of Oklahoma.

You are instructed that the possession of more than 1 quart of whiskey is prima facie evidence of intent to sell, but that such prima facie evidence may be rebutted by proof on the part of the defendant that there was no intent on his part to sell the same.'

In support of this contention, the defendant cites the cases of Hughes v. State, Okl.Cr.App., 184 P.2d 625, not yet reported in State reports and Savalier v. State Okl.Cr.App., 185 P.2d 476, not yet reported in State reports. In relation to the above instruction Judge Barefoot further said: 'In the above cases the court had under consideration an instruction given by reason of Tit. 37 O.S.1941 § 82, which provides that the having in one's possession in excess of one quart of intoxicating...