Moss v. State
| Decision Date | 23 November 1910 |
| Parties | MOSS v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
The state is not estopped from prosecuting a violation of the prohibition law because the purchase of the liquor was made at the instance of the prosecuting attorney and for the purpose of instituting a prosecution thereon.
Where an information in legal form is verified as true in positive terms, such verification constitutes a sufficient showing of probable cause to authorize the issuance of a warrant of arrest and to put the defendant on trial; and on a motion to quash the information no issue can be made as to the knowledge or want of knowledge of the facts charged on the part of the person who verified the information; nor can the information be set aside on the ground that the person who verified it had no personal knowledge of the facts alleged.
Where a defendant is prosecuted under section 7, art. 1, of the state Constitution, for selling "intoxicating liquor, to wit beer," and the state proves that the defendant sold beer, the presumption is that the same was intoxicating, and the burden is on the defendant to rebut the presumption by evidence. If no evidence is adduced upon that question by either side, the presumption that the beer sold was intoxicating is conclusive on the jury.
In rebutting the presumption arising in such case that the beer sold was intoxicating, the defendant is required to produce only sufficient evidence to raise a reasonable doubt as to its intoxicating quality. When that is done, it devolves upon the state to show beyond a reasonable doubt that the beer sold was in fact intoxicating; and it is error to refuse to so instruct the jury when properly requested by the defendant, provided evidence has been produced tending to show that the beer sold was not intoxicating.
Under section 7, art. 1, of the state Constitution, forbidding the sale of "intoxicating liquor, including beer, ale and wine," it is necessary to allege that the liquor sold was intoxicating, and to prove that fact either by evidence of its intoxicating quality or effect, or by evidence showing that the liquor sold was of that kind presumed by law to be intoxicating.
Under section 1 of article 3 of the act approved March 24, 1908 (section 4180, Snyder's Comp. Laws), forbidding the sale of "any spirituous, vinous, fermented or malt liquors or any imitation or substitute therefor," it is necessary neither to allege nor prove that the liquor sold was intoxicating. The allegation and proof that the liquor sold was a spirituous, vinous, fermented, or malt liquor, as the case may be, or an imitation of or a substitute for one or the other of those liquors, is sufficient, and it will be no defense to show that the liquor was not intoxicating.
The further provision of section 4180, Snyder's Comp. Laws forbidding the sale of "any liquors or compounds of any kind or description whatsoever, whether medicated or not which contain as much as one-half of one per centum of alcohol measured by volume, and which are capable of being used as a beverage," etc., is intended to prohibit the sale of patent medicines and medicated drinks and compounds which contain alcohol and are capable of being used as a beverage, and in no sense modifies or qualifies the preceding provision forbidding the sale of "spirituous, vinous, fermented or malt liquors or any imitation or substitute therefor."
It is not error to refuse a requested instruction, where the court has already given the substance of the request in other proper instructions.
Where an information charges that the defendant sold intoxicating liquor to some person whose name is unknown to the informant, the information is not demurrable on account of the failure to state the name of the purchaser.
Where an information alleges that defendant sold intoxicating liquor to some person whose name is unknown to the informant, in the absence of any evidence on the question, the verity of the allegation that the name of the purchaser was unknown at the time of filing the information will be presumed. But, if the evidence affirmatively shows that the name was known to the informant at the time of filing the information, the variance between the allegation and the proof is fatal.
If there is no evidence adduced by either side tending to show that the name of the purchaser was known to the informant at the time of filing the information, the presumption of the verity of the allegation that it was unknown becomes conclusive on the court and jury. If the possession of such knowledge by the informant at the time of filing the information is admitted by the prosecution or conclusively and indisputably shown, then the question is one for the court only; but if there is evidence tending to show the fact of knowledge on the part of the informant, but which falls short of conclusive proof, then the question is one for the jury under proper instructions.
A county attorney and an enforcement attorney each represented the state in the enforcement of the prohibition law, and each had authority in the county. The enforcement attorney knew of a sale of liquor and the name of the purchaser; the purchase being made at his instance. The county attorney prepared and signed an information charging the defendant with the sale and alleging the name of the purchaser to be unknown to him. The enforcement attorney then and there verified the information, and assisted in the prosecution, and the information was never amended. Held, that the enforcement attorney could not lawfully withhold from the county attorney the name of the purchaser, if he in fact did so, thus making the allegation that the purchaser's name was unknown to the informant a mere subterfuge to avoid disclosing the name; and that a showing of such facts constituted a fatal variance between the allegation and the proof, entitling the defendant to an acquittal.
Appeal from Oklahoma County Court; Sam Hooker, Judge.
B. B. Moss was convicted of violating the prohibition law, and he appeals. Reversed and remanded, with directions.
Where the information in a prosecution for selling intoxicants, alleges that the sale was to a person whose name was unknown to informant, if there is no evidence produced tending to show that the name of the purchaser was known to informant at the time of filing the information, the presumption of the verity of the allegation that it was unknown becomes conclusive on court and jury; but, if the possession of such knowledge by informant at the time of filing information is admitted by the prosecution or conclusively shown, the question is for the court only, while, if there is evidence tending to show the fact of knowledge of informant which falls short of conclusive proof, the question is one for the jury.
Burwell, Crockett & Johnson, for plaintiff in error.
Fred S. Caldwell, for the State.
The evidence in this case tended to show that H. C. Burwick and S.W. Fenton, at the instance of an enforcement attorney representing the state in cases arising under the prohibition laws, went to plaintiff in error and purchased from him two bottles of beer; the purpose being to ascertain whether plaintiff in error was engaged in selling liquor and to bring him to account if he was. Upon that sale this prosecution was predicated, and it was contended both here and below that under those circumstances the state was estopped hand precluded from prosecuting or punishing plaintiff in error for doing that which the state through its duly commissioned prosecuting officer had solicited him to do.
This same question has already been decided by this court adversely to plaintiff in error's contention in three cases. De Graff v. State, 2 Okl. Cr. 519, 103 P. 538; Caveness v. State (not yet officially reported) 109 P. 125; and Stack et al. v. State (not yet officially reported) 109 P. 126. The law alleged to have been violated was enacted for the benefit and protection of all the people, for the promotion and preservation of their health, sobriety, thrift, peace, and safety. It was not enacted in the special interest of the prosecuting officers, and a violation thereof is an offense, not against the prosecuting attorney, but against the state. Prosecutions for offenses of this character are in the interest of the public solely, and the prosecuting officer can neither repeal the law, pardon the offender, nor grant indulgences; nor can he lawfully give immunity except in those instances provided for by law. It is no less an offense to sell intoxicating liquor for any purpose to a sheriff or prosecuting attorney or to an agent or representative of either, than it is to sell to any one else; and a sale made to such officer or his agent, though solicited by him for the purpose of detecting the commission of the offense and of instituting a prosecution therefor, is punishable, and the officer's solicitation works no estoppel to a prosecution. The pith of the matter was well stated by Justice Vann in People v. Mills, 178 N.Y. 274, 70 N.E. 786, 67 L. R. A. 131, when he said:
We are aware that there are some decisions which apparently uphold the doctrine contended for by plaintiff in error; but the overwhelming weight of authority, and in our opinion all the reasoning, is on the other side, especially in that class of cases where the offense is one of a kind habitually committed, and the solicitation merely furnishes evidence of a course of conduct. See Onondaga County Com'rs...
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