Ward v. State

• Decision Date: 23 August 1924
• Docket Number: A-4406.
• Citation: 228 P. 498,27 Okla.Crim. 362
• Parties: WARD ET AL. v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

228 P. 498

27 Okla.Crim. 362

WARD ET AL. v. STATE.

No. A-4406.

Court of Criminal Appeals of Oklahoma

August 23, 1924

Syllabus by the Court.

The appellants were charged and convicted of the crime of manufacturing intoxicating liquor. During a search of the premises where the liquor and liquor still was found, a mackinaw coat was also found not far distant from the still. The appellant Noble was a witness in his own behalf, and during his cross-examination the county attorney handed the witness this coat and asked him to put it on. Appellant objected, and the court overruled the objection and required him to put on the coat in the presence of the jury. After appellant had placed the coat on his person, the county attorney remarked, "The coat found at the still fits the defendant like the paper on the wall." Held, that the action of the trial court in requiring the defendant when a witness to put the coat on in the presence of the jury violated his constitutional right not to give incriminating evidence against himself.

The provision of the state Constitution that no person shall be compelled to give evidence which will tend to incriminate him is so sacred, and the pressure towards its relaxation so great when suspicion of guilt is strong and the evidence weak and obscure, that it is the duty of courts liberally to construe the prohibition in favor of personal rights, and to refuse to permit any steps tending toward their invasion.

The appellant Ward became a witness in his own behalf, and on cross-examination he was asked if he had ever been convicted for violating any of the laws of this state. His answer was in substance a denial of any such conviction. Thereupon, over the objection of such appellant, the county attorney was permitted to dictate into the record a statement, in the presence and hearing of the jury, that the said Ward had previously been convicted in another county of a violation of the prohibitory liquor laws, giving in substance the evidence, pro and con, which led to such prior conviction. Held, first, that a witness may be impeached by a showing of his former conviction of any offense against the laws of this state; second, that where the witness denies such conviction the impeaching evidence must be limited alone to the proof of such conviction; third, that it is not permissible to prove the facts in evidence in the former trial.

This is a closely contested case on the facts, the conviction being based entirely on circumstantial evidence of a weak and unsatisfactory nature; the errors discussed in the opinion and covered by the foregoing paragraphs of this syllabus are deemed sufficient to require a reversal of the judgment as to each appellant.

Appeal from County Court, Dewey County; W. A. Carlton, Judge.

Joe B Ward and another were convicted of the unlawful manufacture of intoxicating liquor, and they appeal. Reversed.

Hoyt & Butler, of Taloga, for plaintiffs in error.

The Attorney General, for the State.

MATSON P.J.

On the 15th day of March, 1922, the county attorney of Dewey county filed an information in the county court of said county charging the plaintiffs in error, Ward and Noble, hereinafter referred to as defendants, with having on or about the 13th day of October, 1921, unlawfully, willfully, wrongfully, and intentionally made and manufactured by a process of distillation, by means of a liquor still, utensils, and mash and intoxicating liquor, to wit: homemade whisky, capable of being used as a beverage, contrary to the form of the statutes, etc. The defendants were arrested and placed under a bond of $750 for their appearance at the April term of court. On April 3, 1922, the cause was called for trial, a jury impaneled, and the evidence of each side adduced. The jury returned a verdict of guilty, but failed to agree on the punishment, and the court imposed a fine of $400 and a jail sentence of four months against each defendant. The defendants moved to set the verdict aside and for a new trial, which motions were overruled and exceptions saved.

Among the errors assigned are the following: First, that the trial court erred in requiring the defendant Noble, while testifying as a witness in his own behalf in open court and in the presence of the jury, to put on a coat or mackinaw found in the neighborhood of where certain parties, who were officers searching, had found a still, mash, and whisky in Dewey county, Okl., near the bank of the North Canadian river on the 13th day of October, 1921. Secondly, that the trial court erred in permitting the state's attorney as part of the cross-examination of the defendant Ward, and for the purpose of impeachment, to recite into the record, in the presence of the jury, certain evidence which led to the conviction of said Ward of another offense tried in Major county, Okl., in December, 1921; all over the objection and exception of the defendants. Other errors are assigned, but in view of the disposition made of this appeal we deem it unnecessary to consider them.

The evidence on the part of the state is entirely circumstantial and while it is apparent from the evidence that somebody was engaged in the unlawful manufacture of whisky at the time and place complained of, the circumstances tending to connect these defendants with this manufacture, excluding the evidence hereinafter held to have been inadmissible, do not meet the requirements of the rule that circumstantial evidence, in order to be sufficient to convict, must exclude every reasonable hypothesis other than that of guilt of the defendant.

Relative to the first error above assigned, we find from the record that a certain coat or mackinaw was found by the searching officers on the date that it was alleged this crime was committed in the woods near where the liquor still was found. When the defendant Noble was a witness in his own behalf, the county attorney on cross-examination handed the witness this coat and asked him to put it on. Counsel for the defendant objected to the evidence as being incompetent, irrelevant and immaterial, and the court overruled the objection and required the defendant to put on the coat in the presence of the jury. To this action of the trial court, counsel for the defendant excepted. After the defendant had placed the coat on his person, the prosecuting attorney remarked: "The coat found at the still fits the defendant like the paper on the...