State v. Kollar

• Decision Date: 31 January 1920
• Docket Number: A-3023.
• Parties: STATE v. KOLLAR.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

186 P. 968

17 Okla.Crim. 132

STATE v. KOLLAR.

No. A-3023.

Court of Criminal Appeals of Oklahoma

January 31, 1920

Syllabus by the Court.

Alcohol is within the definition of spirituous, vinous, fermented and malt liquors prohibited from sale, etc., within this state, and the possession of such intoxicating liquor with intent to sell the same, except in the manners specifically provided and for the purposes allowed by the Constitution and subsequent statutory enactments in furtherance thereof, is a crime against the laws of this state.

[Ed Note.-For other definitions, see Words and Phrases, First and Second Series, Spirituous Liquors.]

For information held to state sufficiently the facts necessary to constitute the offense of unlawful possession of alcohol with intent to sell the same unlawfully, see body of opinion.

Additional Syllabus by Editorial Staff.

Courts will take judicial notice that alcohol is an intoxicating liquor.

Appeal from County Court, Canadian County; R. B. Forrest, Judge.

T Kollar was charged with unlawfully possessing intoxicating liquors, and from a judgment sustaining a demurrer to the information, the State appeals. Reversed.

S. P. Freeling, Atty. Gen., R. McMillan, Asst. Atty. Gen., and E. F. Maley, Co. Atty., of El Reno, for the State.

J. I. Phelps, of El Reno, for defendant in error.

MATSON J.

On the 16th day of April, 1917, E. F. Maley, as county attorney of Canadian county, filed in the county court of said county an information against one T. Kollar, the charging part of which is as follows:

"That one T. Kollar, late of the county of Canadian and state of Oklahoma, on or about the 14th day of April, in the year of our Lord one thousand nine hundred and seventeen, at and within said county then and there being, did then and there willfully and unlawfully have possession of intoxicating liquors, to wit, four quarts alcohol, with the unlawful intent to then and there sell, barter, give away, and otherwise furnish the same to others unlawfully, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state."

The defendant was arrested and brought before the court, and as a plea to said information filed a demurrer upon the following grounds:

"That the same does not charge facts sufficient to show that the laws of the state of Oklahoma had been violated.

That the same does not charge a violation of the laws.

That the same is indefinite, uncertain as to the facts attempted to be charged.

That the same is not drawn and presented as provided by law."

On the 22d day of May, 1917, the said cause coming on for hearing upon the demurrer of the defendant to the information, the trial court found that said information did not state facts sufficient to constitute a public offense, and that the said demurrer of the defendant should be, and the same was, sustained. The trial court thereupon ordered and adjudged that the demurrer of the defendant be sustained, and that the defendant be discharged, to which ruling the state excepted, and exceptions were allowed, and an appeal prayed to this court, and said appeal has been properly perfected in the manner provided by law.

The question to be decided, therefore, in this appeal is a reserved question of law purely, namely: Do the allegations of fact contained in the foregoing information constitute a public offense under the laws of this state?

The information is based upon section 3605, Revised Laws 1910, which in part provides as follows:

"It shall be unlawful for any person, individual or corporate, to manufacture, sell, barter, give away, or otherwise furnish except as in this chapter provided, any spirituous, vinous, fermented or malt liquors, or any imitation thereof or substitute therefor; or to manufacture, sell, barter, give away, or otherwise furnish any liquors or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as one-half of one per cent. of alcohol, measured by volume, and which is capable of being used as a beverage, *** or to have the possession of any such liquors with the intention of violating any of the provisions of this chapter."

The information charges the defendant with the possession of four quarts of alcohol, and it is the contention of the state that alcohol is included within the definition of "spirituous, vinous, fermented or malt liquors," which are prohibited from sale, and also from possession with intent to sell.

Counsel for defendant contends to the contrary, stating in the brief filed, in substance, that the terms "spirituous, vinous fermented or malt liquors" must be construed not to include alcohol, but only of such kind of liquors as whisky, brandy, rum, gin, wine, beer, ale, and fermented cider, which contain alcohol, and are well-known intoxicating beverages, contending that it was...