Trotter v. State

• Decision Date: 29 September 1943
• Docket Number: A-10180.
• Parties: TROTTER v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

141 P.2d 812

77 Okla.Crim. 368

TROTTER v. STATE.

No. A-10180.

Court of Criminal Appeals of Oklahoma

September 29, 1943

Syllabus by the Court.

1. Alleged errors, occurring during the trial must appear from and be supported by, the record. Where the record does not support such alleged errors, this court is without authority to decide questions of law involved.

2. Accused could not rely on error consisting in alleged improper argument of county attorney, where such argument did not appear in the record.

3. Where it is shown that defendant, found in possession of intoxicating liquors, has obtained a license from the United States Government to sell intoxicating liquors, covering the period of time when the liquors were found, this makes a prima facie case of unlawful possession of intoxicating liquors. 37 O.S.1941, § 81.

4. Whether instrument allegedly found in possession of accused is federal retail liquor dealer's license covering period of time in question is question of fact for determination of jury and it is error for the court to instruct the jury that defendant is the holder of a federal retail liquor dealer's license.

5. Error of the court in misdirecting jury with reference to defendant's ownership of a federal retail liquor dealer's license will not be deemed grounds for reversal of case where guilt of defendant is evident, but may be considered in determining the question as to whether sentence pronounced against defendant is excessive.

6. Record examined, evidence held sufficient to sustain a conviction, but sentence modified from ninety days in county jail and $200 fine, to thirty days in county jail and $200 fine.

Appeal from County Court, Garvin County; R. B. Garvin, Judge.

W. L Trotter was convicted of unlawful possession of intoxicating liquor, and he appeals.

Modified and affirmed as modified.

W. R Farmer, of Pauls Valley, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.

JONES Presiding Judge.

The defendant, W. L. Trotter, was charged in the County Court of Garvin County with the unlawful possession of intoxicating liquor, was tried, convicted, and pursuant to the verdict of the jury was sentenced to serve ninety days in the county jail and pay a fine of $200.

For a reversal of this case the defendant presents the following assignments of error:

(1) Misconduct of the county attorney in making prejudicial remarks to the jury.

(2) Error of the court in admitting in evidence state's "Exhibit B" which purportedly showed the payment of the special tax required of liquor dealers by the Federal Government.

(3) Error of the court in the giving of Instruction No. 8, which will be hereinafter

set forth.

In connection with the first assignment of error, counsel argues in his brief that the county attorney made prejudicial remarks in his opening statement to the jury, and further made improper statements in his closing argument. The brief of defendant sets out what purportedly were the statements made by the county attorney. Counsel for defendant, however, admits in his brief that the remarks allegedly made by the county attorney were not taken by the court reporter and were not contained in the case-made.

It is well settled by many decisions of this court that when a defendant seeks a reversal of a judgment of conviction on account of error in the proceedings of the trial court the record must show the proceedings upon which the alleged error is based. Ables v. State, 35 Okl.Cr. 26, 247 P. 423; Baker v. State, 65 Okl.Cr. 136, 83 P.2d 586; Cupp v. State, Okl.Cr.App., 136 P.2d 700.

In the absence of any record sustaining this assignment of error, the same may not be considered by this court.

In connection with the second assignment of error, it is provided by statute in Oklahoma as follows: "The payment of the special tax required of liquor dealers by the United States by any person within this State, except local agents appointed as hereinbefore provided, shall constitute prima facie evidence of an intention to violate the provisions of this Chapter." 37 O.S. 1941 § 81.

Pursuant to this statute this court has sustained the admission in evidence of a federal license stamp found in the possession of the party charged with the violation of the intoxicating liquor law, made out to him and covering the period of time during which it is alleged that he violated the intoxicating liquor law. Greenwood v. State, 9 Okl.Cr. 342, 131 P. 940; Cahn v. State, 10 Okl.Cr. 200, 135 P. 1155; Walker v. State, 11 Okl.Cr. 339, 127 P. 895.

The record here discloses that a search of defendant's premises was made by county officers of Garvin County and about twelve pints of intoxicating liquor seized by the officers. Only two witnesses testified for the state and neither of them testified concerning the finding of a federal liquor license at defendant's premises. At the close of the testimony of the first witness the record discloses that the county attorney made the following offer: "We offer in evidence as State's 'Exhibit B' Federal Liquor License." The defendant objected to the admission of such evidence and the objection was overruled and the said exhibit admitted in evidence. It reads as follows:

"Trotter, W. L. RLD

Gen. Del. 28656

Pauls Valley, Okla. July 40

Trans: 426 N. Pecan, Pauls Valley, Okla.

Trans: 503 S. Willow, Pauls Valley, Okla."

There is nothing on the face of this instrument to show that it is a receipt for payment of the special United States liquor tax and without some evidence identifying the exhibit and showing where it was found the objection of ...