Prochneau v. State

• Decision Date: 02 November 1925
• Docket Number: A-5178.
• Citation: 240 P. 1090,32 Okla.Crim. 210
• Parties: PROCHNEAU v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

240 P. 1090

32 Okla.Crim. 210

PROCHNEAU v. STATE.

No. A-5178.

Court of Criminal Appeals of Oklahoma

November 2, 1925

Syllabus by the Court.

In a prosecution for selling intoxicating liquor, evidence held insufficient to sustain a conviction.

The fact that the prosecuting witness was intoxicated at or about the time of the transaction concerning which he has testified may be shown for the purpose of impeaching his credibility without first interrogating him as to his condition at the time in question.

A witness' testimony may be impeached by showing intoxication at or about the time of the transaction testified to, not only by the evidence of other witnesses but by cross-examination of the witness himself.

Appeal from County Court, Blaine County; W. F. Duncan, Judge.

Dan Prochneau was convicted of a violation of the prohibition law, and he appeals. Reversed with direction.

Seymour Foose and R. C. Brown, both of Watonga, for plaintiff in error.

The Attorney General, for the State.

DOYLE J.

The information in this case charges that in Blaine county February 8, 1924, Dan Prochneau "did sell to one B. E Slagle one pint of whisky." On the trial the jury returned a verdict finding him guilty as charged in the information and fixing his punishment at a fine of $75 and confinement for 30 days in the county jail.

The errors relied on, and upon which the defendant asks for a reversal, are as follows: That the court erred in refusing to admit evidence offered by the defendant on the trial of the case; that the prosecuting witness B. E. Slagle was guilty of misconduct, on the trial in the presence of the jury, prejudicial to the rights of the defendant; that the prosecuting attorneys were guilty of misconduct during the trial and in the presence of the jury prejudicial to the rights of the defendant; and that the verdict is not supported by sufficient evidence.

B. E. Slagle testified that his home is in Carman, Alfalfa county; that he was employed and commissioned as a deputy sheriff in Blaine county in the month of February, 1924; that his business was catching bootleggers, and in the evening of the 8th day of February, he went into the defendant's restaurant and bought a pint of liquor from the defendant, for which he paid him $2.50; that his wife was present at the time; that he turned the pint of liquor over to the city marshal. The bottle was introduced in evidence, bearing the label as follows:

"2-8-24 Bought from Dan Prochnoor one pint of whisky at his café. Delivered to me in the kitchen of his place. B. E. Slagle."

On cross-examination he stated that the business men of Canton paid him $10 a day and his expenses to come down there. He was then asked: "During that time you furnished whisky to four boys under 21 years of age, didn't you?" The state objection sustained.

On behalf of the defendant, Mrs. Prochneau testified that B. E. Slagle came into their restaurant about supper time and asked her husband if he knew where he could get anything to drink, and her husband said, "No"; that she remained in the restaurant that evening until about 11 o'clock, and Slagle came back again in about half an hour with a man called Dipper, and her husband sold him two cigars; that Slagle acted like he was drunk. As he went out he staggered and could not walk straight.

As a witness in his own behalf, the defendant testified that B. E. Slagle came into his restaurant in Canton about 6 o'clock in the evening and asked him if he could get him some whisky, and he told him no, and Slagle said: "I have been out to the Indian Camp, and we had a quart when I started out there, but we drank it up, and I would like to get some more," and he told him he could not get him any, and Slagle started off, saying: "I am pretty well liquored up, and I want to go back out there." In about 30 minutes he returned with a fellow called "Dipper," whose name is Morrel, and he bought two tencent cigars, paid for the same, and then went out.

Boyd Bates testified that he had lived in and near Canton all his life; saw B. E. Slagle about 7 o'clock in the evening and he was drunk. He was then asked:

"Q. Did you see him drink any intoxicating liquor that afternoon? A. Yes, sir.

County Attorney: Object.

The Court: Sustained. Answer stricken from the consideration of the jury.

Mr. Foose: I have this witness and several others, and I want to offer this testimony formally, then in detail.

The Court: The jury will retire.

Mr. Foose: We now offer to prove by this witness that about 2 or 3 o'clock, February 8th, B. E. Slagle, this witness George Hollander, and George Phipps were in the back room of the real estate office of Myers & Schmidt, and said B. E. Slagle produced a bottle of whisky; that Earl Hunt, a minor, of the age of 18 years, entered the room and said to B. E. Slagle that he had only 30 cents, but that he wanted a drink, and Slagle handed the bottle to Ralph Hunt; that George Hollander protested that boys were not allowed to drink whisky; that Ralph

Hunt took a drink of whisky out of the bottle and paid Slagle 30 cents for it; that immediately afterwards George Phipps took a drink and paid Slagle 50 cents for it; and that Boyd Bates, the witness on the stand, took a drink of the same whisky and paid Slagle 50 cents for it; and that George Hollander took a drink but did not pay and handed the bottle back to Slagle, and he put it in his pocket. We offer to further prove that B. E. Slagle was intoxicated at this time.

The County Attorney: The state objects to the offer.

The Court: Sustained. Exception allowed."

"Counsel for defense further offers to prove by the witnesses Ralph and George Hollander the facts as stated: The Court: Objection sustained.

The jury returned into court.

During the trial counsel for the defense stated to the court that B. E. Slagle, sitting outside the railing from the jury, and during the examination of the witnesses, habitually expressed his disapproval of their testimony by staring at them in an intensely angry manner, and

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