Sies v. State

• Decision Date: 29 August 1911
• Citation: Sies v. State, 117 P. 504, 6 Okla.Crim. 142, 1911 OK CR 269 (Okla. Crim. App. 1911)
• Parties: SIES v. STATE.
• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

117 P. 504

6 Okla.Crim. 142, 1911 OK CR 269

SIES v. STATE.

Court of Criminal Appeals of Oklahoma

August 29, 1911

Syllabus by the Court.

Where the evidence is wholly circumstantial, and the facts and circumstances in evidence are of such a character as to fairly permit an inference consistent with innocence, it cannot be regarded as evidence sufficient to support a conviction.

The facts and circumstances proved must not only be consistent with and point to the guilt of the defendant, but they must be inconsistent with his innocence.

Appeal from Jefferson County Court; C. M. Bond, Judge.

Ward Sies was convicted of selling whisky illegally, and he appeals.Reversed.

J. H Harper, for plaintiff in error.

Smith C. Matson, Asst. Atty. Gen., for the State.

DOYLE J.

Plaintiff in error was convicted of the crime of selling whisky to one Luther L. Busby, and sentenced to imprisonment for 30 days in jail and pay a fine of $50.Judgment was entered on October 15, 1909, from which judgment an appeal was taken by filing in this court on December 14th a petition in error with case-made.

The record shows the testimony of Luther Busby the first witness for the state as follows: "Q.I'll ask you if you ever obtained any intoxicating liquors from Ward Sies?A.No sir.Q.On or about the 12th of June of this year?A.No sir.Q.Did you turn over a pint of whisky to J. D. Tolleson?A.Yes, sir.Q.Where did you get that?A.I found it in a box back behind there.Q.Where, back of Ward Sies' place?A.Well, sorter back of Carter's real estate office.Q.What kind of money did you pay for that?A.I didn't pay him any money.Q.What kind of money did you leave where you got the whisky?A.I couldn't say.Q.Youdon't remember whether it was a $1 bill?A.No, sir; I couldn't say.Q.Who did you see when you got that?A.Not any one.Q.Youdidn't see anybody?A.Not that I remember of.Q.But you come through Ward Sies' place of business?A.No, sir.Q.Did you see Ward about the time you got it?A.No, sir; I think not, not that I remember of.Q.Well, if you did, you would remember it, wouldn't you?A.I would think so; yes.Q.What did you do with the money?I'll ask you if it is not a fact that Jake Tolleson gave you a $1 bill to get whisky with ?A. Jake Tolleson gave me some money, but I don't remember about the kind of money.Q.Do you know whether that money was marked?A.No, sir.Q.Yougot a pint of whisky with the money he gave you?A.I got a pint with some money.I don't know whether it was the same money Jake Tolleson gave me or not."He further testified that the defendant, Ward Sies, conducted a restaurant near witness' place of business, and that the defendant would come into his place to get change, and that witness frequently went into defendant's place to get change, and that Tolleson was somewhat intoxicated when he gave him the money.

Jake Tolleson testified that he gave Luther Busby a marked dollar bill to buy whisky, and Busby went and brought him back a pint of Sunny Brook whisky; that the next time he saw the marked dollar billR. B. Pitts had it.

R. B Pitts and Hugh Treadwell testified that they marked a dollar bill and gave it to Jake Tolleson, and that a few hours after they gave the bill to...