Reed v. State

• Decision Date: 25 September 1909
• Citation: 103 P. 1070,3 Okla.Crim. 16,1909 OK CR 122
• Parties: REED v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

103 P. 1070

3 Okla.Crim. 16, 1909 OK CR 122

REED v. STATE.

Court of Criminal Appeals of Oklahoma

September 25, 1909

Syllabus by the Court.

Under an information charging a sale of intoxicating liquors, a conviction cannot be had where the evidence shows that the defendant had no interest in the liquor sold nor in the money paid for it, but acted only as the agent or friend of the purchaser in procuring the liquor.

The instructions should cover the whole case. The defendant is entitled to an instruction defining the law as applicable to his defense, if there is any competent evidence reasonably tending to substantiate that defense.

A person charged with illegally selling intoxicating liquors cannot be convicted of furnishing or conveying the same; a "sale" being defined to consist of an agreement by which the title passes from one and vests in another, a transfer of property from seller to buyer for a price in money paid or promised.

Appeal from Grady County Court, Sitting at Chickasha; N.M. Williams Judge.

John Reed was convicted of illegally selling intoxicating liquors and he appeals. Reversed and remanded.

F. E Riddle, for appellant.

Fred S Caldwell, counsel to the Governor, for the State.

OWEN J.

The plaintiff in error (hereinafter referred to as the defendant) in his petition assigns six errors. The brief filed by counsel for defendant urges only the first and fourth assignments, which go to the instructions given by the court and the refusal of the court to give instructions requested on the part of the defendant. The charging part of the information on which this defendant was tried is as follows: "*** At and within said county and state or the 31st day of December, 1907, John Reed then and there being, did then and there, wilfully and unlawfully sell in toxicating liquors, to wit, whisky, to S. H. Owens, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Oklahoma." The proof on the part of the state was to the effect: S. H. Owens stated to a negro woman that he wanted some whisky. She said she could get the defendant, who was in an adjoining room, to get it for him. That she called the defendant in, and the defendant said: "All right, but I will have to first go and get it. You give me a dollar, and I can get it." Thereupon the witness Owens gave the defendant a dollar. The defendant went away and came back with two half pints of whisky, and delivered one-half pint to the witness Owens, and took a drink himself out of the other bottle, and that Owens then did not want the bottle and let the defendant keep it. The testimony on the part of the defendant, after corroborating the witness Owens in all things, was that he bought the whisky from a white man by the name of Fuller, and that he had no interest in the whisky and received no part of the money.

The court instructed the jury as follows: "This is an information charging that John Reed did on the 31st day of December, 1907, sell intoxicating liquors, to wit, whisky, to S. H. Owens. If you find from the evidence that John Reed did on that date and day last above mentioned, in the county of Grady and state of Oklahoma, sell to S. H. Owens whisky as charged in this information, you will so say by your verdict and find the defendant guilty. The defendant is presumed to be innocent until his guilt has been established by competent evidence to your satisfaction, and, if you have a reasonable doubt as to his guilt, you will acquit the defendant. You are the sole judges of the credibility of the witnesses and the weight to be attached to their testimony. Five of you can render a verdict by signing the same. If the verdict be unanimous, it can be rendered by your foreman signing it." This was all the instructions given by the court as disclosed by the record. The defendant requested the following instruction: "The court charges the jury that if you believe from the evidence that the defendant Reed acted as agent and took the money of one of the witnesses for the state, and purchased the whisky from a third party, and that he did not sell the same to the said witness himself, but only went at the request of the witness, and purchased the whisky from a third party, and that the defendant had no connection with the sale of same other than to purchase it for the witness, as above stated, then in that event he would not be guilty under the law, and you shall so find." The court refused to give this instruction, to which refusal the defendant, in proper form, excepted. It was error for the court, to refuse the request of the defendant to give this instruction. The instruction given by the court was proper so far as it went. It only covered the testimony on the part of the state. The instructions should cover the whole case. The defendant is entitled to instruction defining the law as applicable his theory of the case and covering his defense, if there...