Thompson v. State

• Decision Date: 07 June 1913
• Citation: 132 P. 695,9 Okla.Crim. 525,1913 OK CR 137
• Parties: THOMPSON v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

132 P. 695

9 Okla.Crim. 525, 1913 OK CR 137

THOMPSON v. STATE.

Court of Criminal Appeals of Oklahoma

June 7, 1913

Syllabus by the Court.

A verdict of guilty upon the uncorroborated testimony of an accomplice is contrary to law and to the evidence; for this reason the defendant's motion to direct a verdict of not guilty should have been sustained.

Upon a trial under an information charging that the defendant did have the possession of intoxicating liquors with the intention of violating provisions of the prohibitory law evidence of the general reputation of his home or barn is incompetent to prove the charge.

Appeal from County Court, Pottawatomie County; Ross F. Lockridge Judge.

T. L Thompson was conviced of violating the prohibitory law, and appeals. Reversed.

P. O. Cassidy and E. D. Reasor, both of Shawnee, for plaintiff in error.

Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (Monroe Osborn, of Purcell, of counsel), for the State.

DOYLE J.

The plaintiff in error was convicted upon an information filed in the county court of Pottawatomie county on the 15th day of August, 1911, which charged that "F. L. Thompson did on or about the 12th day of August, 1911, unlawfully have the possession of whisky and alcohol with the intent then and there unlawfully to sell the same." October 28, 1911, he was sentenced in accordance with the verdict of the jury to be confined in the county jail for 30 days and to pay a fine of $200. To reverse the judgment the defendant perfected an appeal by filing in this court January 20, 1912, a petition in error with case-made.

The assignments of error are in effect as follows: First. That the court erred in overruling the defendant's motion to strike the information from the files for the reason that said information was entitled in the superior court, and the further reason that said information gave the "superior court" to know and be informed that the defendant had committed the crime of unlawfully having in his possession spirituous liquors with intent to sell, etc., and in permitting the county attorney to amend said information by inserting "county" wherein the word "superior" occurred in said information; and that the court erred in permitting the county attorney to indorse upon the information names of four witnesses, after the jury had been impaneled and sworn to try the case, over the defendant's objection; and that the court erred in admitting incompetent, irrelevant, and hearsay evidence on the part of the state, and in excluding relevant and competent evidence offered by the defendant; and that the court erred in refusing to instruct the jury not to consider improper remarks of the county attorney in addressing the jury; and that the verdict is contrary to law and to the evidence.

From an examination of the record, the conclusion of the court is that the judgment in this case cannot be permitted to stand, as it is evident that the defendant did not have a fair trial. A fair trial is a legal trial, or one conducted in all material things in substantial conformity to the law. An unfair trial, especially in a criminal case, is a reproach on the administration of public justice. And in this case there seems to have been a careless disregard of the legal rights of the defendant, not only in the manner in which the information was drawn and filed and the names of the witnesses indorsed thereon, but the trial judge permitted to be introduced incompetent and hearsay testimony for the evident purpose of attempting to corroborate the testimony of an accomplice, and allowed continuous departures from the law by the prosecuting attorney, although he should have known that it was his duty to prevent them, even on his own motion, without suggestion from the defendant's counsel.

The only testimony which in any manner tends to support the verdict was that of the complaining witness, Earl James, who subscribed his name to the information by making his mark. This witness testified that he lived at Sasakwa, but in August went to Maud, and while there was arrested and convicted of selling whisky; that he worked for the defendant in Seminole county in July, hauling ties; that on August 8th he went with the defendant to Spaulding, in Hughes county, and there the defendant received from the express office a case of whisky and a jug of alcohol and they took it to the defendant's logging camp, and there they put the liquor in Mrs. Callie Lewis' tent, under the bed, and a few days later they took the liquor from under the bed and put it into a buggy and brought it to Maud and placed it in the defendant's barn; and that witness took it to Truesdell's wagon yard and sold it for the defendant on a percentage; and that the defendant promised to take care of him if he was found guilty of selling the liquor, and told him he would pay his fine and make his bond, if necessary. He admitted that he told several persons that he had been engaged in selling liquor at Bromide, but that he did not tell the truth; that he also worked with Bill English making posts for the defendant.

Mrs. Dickson testified that she lived at Maud. She was then asked: "Q. On or about the 12th day of August, did you know what the reputation of defendant's barn was as to being a place where whisky could be procured? (Defendant objects and asks that the witness answer the question 'Yes' or 'No.') A. I do not know whether I could answer it by saying 'Yes' or 'No,' but I have heard it was."

Mrs. Sam Hall testified she lived at Maud, and the record shows her testimony as follows: "Q. I will ask you to state, Mrs. Hall, if you know what the general reputation of the Thompson barn in the town of Maud was on or before August 12, 1911, as to being a place where whisky could be procured? A. I reckon it was from all appearance. Q. Do you know the reputation? A. Yes, sir. Q. What was that reputation? A. All that I know is that I saw this boy going to and coming from Mr. Thompson's barn. Q. Which boy do you have reference to? A. Earl is his first name; I do not know his other name." The defendant moves to strike out the answers of the witness. Motion overruled by the court, and the defendant excepts.

Gus Jones testified that he bought a bottle of whisky from Earl James at the Truesdell's wagon yard on August 12th. He was then asked: "Q. Do you know the reputation of the Thompson barn as to being a place where whisky could be procured?" and answered, "No, sir."

Elzie Lewis was asked the same question and answered, "No, sir."

Several other witnesses were asked if they knew the general reputation of the defendant's barn as to being a place where whisky could be procured, and all answered that they did not.

Louis Eidson testified: That he was city marshal at Maud and arrested Earl James for selling whisky, and searched the defendant's barn but did not find any whisky. That the barn had the reputation of being a place where whisky could be...