Phelps v. State
| Decision Date | 26 February 1927 |
| Docket Number | A-5684. |
| Parties | PHELPS et al. v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
An information charging a misdemeanor, positively sworn to, is sufficient. A motion to quash such information for the reason that the person swearing thereto does not have positive knowledge of the facts stated in such information should be overruled.
The courts take judicial knowledge that whisky is a spirituous liquor, and where an information charges a defendant with the manufacture of whisky, it is sufficient. There need not be either an allegation or proof of the alcoholic content of whisky (citing Words and Phrases, First Series, Whisky).
Record examined, and held that the evidence sustains the judgment, and that the trial was without prejudicial error.
Appeal from County Court, Major County; J. Dawson Houk, Judge.
Jack Phelps and Fred Wahl were convicted of manufacturing whisky and they appeal. Affirmed.
A. O Manning, of Fairview, for plaintiffs in error.
Edwin Dabney, Atty. Gen., for the State.
The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Major county on a charge of manufacturing whisky and each sentenced to pay a fine of $200 and to be confined in the county jail for a term of 60 days.
The record discloses that the two defendants, with Art Warkentine, installed a still at the home of Warkentine and manufactured a considerable quantity of whisky. The defendants did not take the stand, and offered no evidence. Counsel for defendants made a vigorous defense, objecting to each step of the proceedings, and has filed a brief making various technical contentions.
The information was verified by the county attorney. A motion to quash was interposed for the reason that it was in fact made on information and belief. A hearing was had on this motion and county attorney testified that he went to the place after the arrest and saw the still and other paraphernalia, and had affidavits filed with him as a basis for his affidavit. The positive affidavit of the county attorney is sufficient. Sayers et al. v. State, 10 Okl. Cr. 233, 135 P 1073. If, however, we should hold otherwise it would not have been a sufficient reason for quashing the information. The information, in any event, would have been good for all purposes except as a basis for issuing a warrant, and the remedy would have been to have quashed the warrant, and not to quash the information. Bowen v. State, 5 Okl. Cr. 605, 115 P. 376; Fullingim v. State, 7 Okl. Cr. 333 123 P. 558.
Defendants next contend that the information is insufficient in failing to charge the whisky manufactured contained more than one-half of 1 per cent. of alcohol, measured by volume. Section 7002, Comp. Stat. 1921, defines the offense for which the defendants are prosecuted. Such section prohibits the manufacture of spirituous, vinous, fermented, or malt liquors. The courts take judicial knowledge that whisky...
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