Seay v. State
| Decision Date | 14 February 1925 |
| Docket Number | A-4822. |
| Parties | SEAY v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Objections to the sufficiency of an information should be taken by a demurrer thereto, as provided by Code of Criminal Procedure (section 2608, Comp. Stats. 1921). Our Code further provides "When the objections mentioned in section 2608 appear upon the face of the indictment or information, they can only be taken by demurrer, except * * * that the facts stated do not constitute a public offense, may be taken at the trial under the plea of not guilty, and in arrest of judgment." Section 2616. Under this provision, if it appears that the facts stated do not constitute a public offense, an objection to the introduction of evidence on that ground is sufficient to raise the question.
In a prosecution for having possession of intoxicating liquor evidence held not to show that the liquor or compound in question was capable of being used as a beverage.
In a prosecution for having possession of intoxicating liquor evidence considered, and held insufficient to support a conviction.
Additional Syllabus by Editorial Staff.
Possession of compound or mixture containing as much as or more than one-half of 1 per cent. of alcohol, not intended and which cannot be used as beverage, is no offense, under Comp. St. 1921, § 7002.
Where alleged intoxicating liquor was mash, not capable of being used as beverage, charge should have been manufacturing or attempting to manufacture intoxicating liquor, Laws 1923-24, c. 42, § 1, making possession of mash unlawful, not being in force at time of alleged offense.
Appeal from County Court, Muskogee County; W. W. Cotton, Judge.
Major Seay was convicted of unlawful possession of intoxicating liquor, and he appeals. Reversed.
M. B. Hartsell, of Muskogee, for plaintiff in error.
George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
The information in this case charges that Major Seay, "did knowingly and unlawfully have the possession of certain spirituous liquor, vinous liquor, fermented liquor, malt liquor, and intoxicating liquor, to wit, one hundred (100) gallons of intoxicating liquor containing more than one-half of 1 per cent. of alcohol measured by volume," with intent to sell the same.
On the trial the jury returned a verdict finding him guilty, and fixing his punishment at a fine of $50 and confinement in the county jail for 30 days. He has appealed from the judgment rendered on the verdict. The errors assigned question the sufficiency of the information to charge an offense, and the sufficiency of the evidence to sustain the conviction.
The record shows that the first objection to the sufficiency of the information was made when Otto Bales was sworn and called as the first witness for the state, at which time the defendant objected to the introduction of any testimony, for the reason that the facts stated do not constitute a public offense. It is contended that the information should have further charged that the liquor was capable of being used as a beverage.
Objection to the sufficiency of an information should be taken by a demurrer thereto, as provided by Code of Criminal Procedure. Section 2608, Comp. Stats. 1921. Our Code further provides:
"When the objections mentioned in section 2608 appear upon the face of the indictment or information, they can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment or information,...
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