Thomas v. State
| Decision Date | 14 June 1924 |
| Docket Number | A-4347. |
| Parties | THOMAS v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Where the accused is charged with the illegal transportation of intoxicating liquor from one place to another, where it is apparent that the removal was made to facilitate the barter or sale of the liquor, the distance over which it was carried or moved is immaterial.
(a) It is not necessary that the ultimate destination shall be a fixed point.
Intoxicating liquor obtained from the home of the accused by means of an illegal search and seizure may not be used as evidence over the timely objection of the accused.
It may be reversible error for a county attorney in his argument to the jury to comment on assumed facts not in evidence.
Appeal from County Court, Pittsburg County; S. F. Brown, Judge.
Carl Thomas was convicted of the illegal transportation of whisky and he appeals. Modified and affirmed.
Monk & McSherry, of McAlester, for plaintiff in error.
The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
Appellant was convicted of the illegal transportation of intoxicating liquor, and by verdict of the jury his punishment was fixed at a fine of $300 and confinement in jail for a period of four months. From the judgment on this verdict he appeals.
The proof shows that just after dark certain peace officers saw several men in an automobile drive up to the residence of the appellant, herein referred to as the defendant, and saw him enter his home while the other men remained in the car. These peace officers secreted themselves behind a hedge and saw the defendant come out of his home and go towards the waiting automobile, carrying a bottle. The defendant, when accosted by the officers, threw the bottle against the front wheel of the car, breaking the bottle. As he did so he said, "You fellows haven't got anything on me." The officers recovered one of the fragments of the bottle containing corn whisky. The car to which defendant was carrying the whisky was standing in the street, close to the property line. Defendant was immediately arrested and placed in jail, and the arresting officers then returned and searched the home of the defendant without a search warrant, and found and seized two more bottles of whisky.
Defendant claims that these facts do not constitute an illegal transportation of intoxicating liquor, within the meaning of the statutes. In support of this claim he cites the case of De Graff v. State, 2 Okl. Cr. 519, 103 P. 538, in which this court held that the removal of intoxicating liquor from one room to another on the same premises was not an illegal transportation, within the meaning of the statute.
The facts in the De Graff Case and this case are so dissimilar that the holding of the court in the former cannot be considered as a guide for this case. One may be in lawful possession of intoxicating liquor, for the purpose of personal home consumption. The purpose of all the features of the prohibitory liquor laws is to prevent and discourage the illegal sale, transportation, and distribution of intoxicating liquor. The facts in this case indicate that the defendant was about to make a sale of corn whisky to the men in the car, or to give it to them, or to join them in a bibulous joy ride on the public highway. The purpose in any event was to do something which the law prohibits. One of the restraints imposed by law is that liquor shall not be transported in such manner as will facilitate an illegal sale or use.
It has been held that the words "transport, transporting, and transportation," as relates to intoxicating liquor embrace a movement of the liquor by the accused on his person. 33 Corpus Juris, 582, and cases cited. This includes the carrying on one's person of whisky procured at some place and carried to the home of the accused. Allen v State, 159 Ark. 663, ...
To continue reading
Request your trial