Scroggs v. State
| Decision Date | 22 December 1938 |
| Docket Number | A-9522. |
| Citation | 85 P.2d 764,65 Okla.Crim. 293 |
| Parties | SCROGGS v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. Where the prosecution relies wholly upon circumstantial evidence, the facts and circumstances must not only be consistent with and point to the guilt of the accused, but must be inconsistent with his innocence.
2. Where an attempt is made to convict a defendant and to hold him criminally responsible for the acts of his employee, it must be clearly shown that such act was reasonably within the scope of the agent's employment, or was an act done within the course of the principal's business.
3. In a prosecution for maintaining a place where malt, spirituous vinous and fermented liquors, and imitations and substitutes therefor, and other intoxicating liquors capable of being used as a beverage, were received and kept for the purpose of bartering, selling, giving away and otherwise furnishing the same to others unlawfully. Record carefully examined and evidence held insufficient to sustain a conviction.
Appeal from County Court, Payne County; Ralph B. Simcoe, Judge.
Arthur E. Scroggs was convicted of maintaining a place where intoxicating liquors were kept for unlawful sale, and he appeals.
Judgment reversed, and cause remanded, with directions to dismiss.
Guy Horton, Brown Moore, and John W. Whipple, all of Stillwater for plaintiff in error.
Mac Q. Williamson, Atty. Gen., and Leon J. York, Co. Atty., of Stillwater, for the State.
The plaintiff in error, Arthur E. Scroggs, was by information jointly charged with M. E. Spencer and Leo Connor, with the crime of maintaining a place in the city of Stillwater, Payne County, Oklahoma, where malt, spirituous, vinous and fermented liquors, and imitations and substitutes therefor, and other intoxicating liquors capable of being used as a beverage, were received and kept for the purpose of bartering, selling, giving away and otherwise furnishing the same to others unlawfully. A severance was granted, the defendant was tried, convicted and sentenced to be imprisoned in the county jail for ninety days and to pay a fine of $350. Motion for new trial was filed, overruled, and exceptions saved and defendant appeals.
The record is voluminous, many pages of which contain immaterial testimony. The facts briefly stated are the defendant, on the 10th day of February, 1938, and several years prior thereto was the proprietor of the Grand Hotel, in the city of Stillwater, Oklahoma. The officers secured two search warrants, one to search the lobby and desk and other things in the hotel on the first floor, and one to search the room of one of the clerks of the hotel, known as room 229; search was made by the officers in the hotel lobby and desk and different places and no intoxicating liquors of any kind or character was found, as shown by the return on the search warrant.
The other search warrant was executed by the officers going to the second floor of the hotel where they contacted the porter and he showed them room 229 but he had no key, one of the officers went down and got the key to room 229, which the record shows was the living room of M. E. Spencer; in the room of M. E. Spencer the officers found thirty-three pints of bonded whiskey. They went to the living room of the defendant and found no intoxicating liquor of any kind. No whiskey was found in any other part of the hotel.
The state in order to maintain the charge against the defendant called the officers who made the search to testify to the quantity of whiskey found, and where it was found. There is no dispute that the quantity of whiskey was found in the room at the hotel occupied by M. E. Spencer, the clerk at the hotel. The defendant's room was near Spencer's room, the partition door between the room of the defendant and Spencer's room was bolted. There is no evidence showing it was ever used by parties back and forth regularly. There is no testimony in the record showing that the defendant had any knowledge that the whiskey found by the officers was in Mr. Spencer's room. All the testimony tends to show the defendant had always instructed his employees they must not keep any whiskey about the hotel, and if he found they were doing so they would be immediately discharged.
The testimony of the state fails to disclose the defendant had anything to do with the whiskey, and did not know it was there, or that during the years he had been manager and proprietor he had sold any whiskey, and that he had no knowledge that the whiskey was being sold from the hotel. Some of the officers testify they had talked with the defendant about the hotel and told him it was rumored that whiskey was being sold at the hotel, and they all admit the defendant told them that if they could get any proof or information showing whiskey was being sold there, he would prosecute the parties himself and discharge them from his employ.
The only circumstance which in any way whatever tends to connect the defendant with the whiskey is that he was the manager and proprietor of the hotel in which the whiskey was found in room 229. Leo Connor, the porter, testified to the whiskey being in this room but he says the defendant knew nothing about it. Mr. Spencer testified to the whiskey being in his room and states the defendant had no knowledge of it being there.
Several witnesses were called by the state and asked if they had heard whiskey could be bought at the Grand Hotel, and stated they had heard rumors that whiskey could be bought at the...
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