Richardson v. State
| Decision Date | 11 September 1922 |
| Docket Number | A-3962. |
| Citation | 208 P. 1052,21 Okla.Crim. 393 |
| Parties | RICHARDSON v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
The court will not take judicial notice of the intoxicating character of a beverage which is not made by any standard formula, is not generally offered for sale in this jurisdiction, and has not become so well known as to have a general reputation as to its intoxicating character.
To sustain a conviction for maintaining a public nuisance, in that defendant kept a place where Choctaw beer was manufactured, the state must, if the beverage is not what is generally known as one of the spirituous, vinous, or malt liquors, introduce evidence either of its intoxicating effect or that it contained more than one-half of 1 per cent. of alcohol, measured by volume.
For evidence held insufficient to sustain a conviction for maintaining a public liquor nuisance see body of opinion.
Appeal from County Court, Oklahoma County; W. R. Taylor, Judge.
Levi Richardson was convicted of maintaining a liquor nuisance and he appeals. Reversed.
J. Q A. Harrod, of Oklahoma City, for plaintiff in error.
The Attorney General, for the State.
Defendant was prosecuted in the county court of Oklahoma county charged with having, on the 6th day of May, 1920, and for a long time prior thereto, kept and maintained a public nuisance at 220 North Laird street, Oklahoma City, Oklahoma county, Okl., where intoxicating liquors, to wit, whisky beer, Choctaw beer, and wine were bartered, sold, and given away, and also alleging that said Choctaw beer contained more than one-half of 1 per cent. of alcohol, measured by volume and that defendant permitted numerous and divers persons, unknown to the informant, to congregate at said place for the purpose of drinking said intoxicating liquors, contrary, etc. Upon a trial defendant was convicted, and the punishment assessed at a fine of $50 and imprisonment in the county jail for a period of 30 days.
This prosecution is based on section 13, chapter 70, Session Laws 1910-11, declaring all places where any spirituous, vinous, fermented, or malt liquors, or imitations thereof, or any malt liquors or compounds of any kind or description, whether medicated or not, which contain as much as one-half of 1 per centum of alcohol, measured by volume, and which are capable of being used as a beverage, except preparations compounded by any licensed pharmacist, the sale of which would not subject him to the payment of the special tax required by the laws of the United States, are manufactured, sold, bartered, given away, or otherwise furnished in violation of law, or where any such liquors are kept for the purpose of violating the law, or where persons congregate or resort for the purpose of drinking such liquors, to be public nuisances, and upon conviction the owner or keeper may be adjudged guilty of maintaining a public nuisance, and the punishment fixed at a fine of not less than $50 nor more than $500, and by imprisonment in the county jail not less than 30 days nor more than 6 months.
The evidence for the state is substantially as follows:
J. T Jerkins testified that he was a captain of police in Oklahoma City; that he went to the home of defendant, at 220 North Laird street, Oklahoma City, together with some other police officers, and found defendant and his wife there, and found a glass pitcher about half full of Choctaw beer, and a tub on the stove in which Choctaw beer was being made, but they found no other kind of liquor there, and did not know...
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