Yoather v. State

• Citation: 113 P. 234,5 Okla.Crim. 46,1911 OK CR 32
• Parties: YOATHER v. STATE.
• Decision Date: 06 February 1911
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

113 P. 234

5 Okla.Crim. 46, 1911 OK CR 32

YOATHER v. STATE.

Court of Criminal Appeals of Oklahoma

February 6, 1911

Syllabus by the Court.

(a) On the trial of an indictment which charges the sale or giving away of a specific kind of liquor by name, not accompanied by general descriptive terms, the sale must be proved as alleged.

(b) An instruction by the court to the effect that a person charged with the sale or giving away of whisky is guilty, when the proof shows the sale or giving away to have been alcohol, is erroneous. For correct instruction, see opinion.

Appeal from Stephens County Court; W. H. Admire, Judge.

Will Yoather was convicted for giving away whisky, and appeals. Reversed and remanded.

Gilbert & Bond, for appellant.

ARMSTRONG J.

Will Yoather was convicted in the county court of Stephens county on the 8th day of May, 1909, on a charge of giving away whisky, and was sentenced by the court to pay a fine of $50 and be confined in the county jail 30 days, and pay the costs of the prosecution. He prayed an appeal, which was duly perfected, and this cause is here regularly.

The information in this case charges that "the said Will Yoather then and there being did then and there give to one Roy Vaught three drinks of whisky, the said Roy Vaught being then and there a minor of the age of fifteen years," etc. The proof shows the prosecuting witness received alcohol, instead of whisky; there being a conflict as to whether the appellant gave it to him or whether he secured it himself. There are a number of assignments of error, but this is the only one that it is necessary for us to consider, and it is raised in the appellant's ninth assignment.

The general rule is, as laid down by Cyc., that if an indictment charges the sale of a specific kind of liquor by name, and not accompanied by general descriptive terms, it must be proved as alleged. 6 Cyc. 264, and authorities cited thereunder. The information in this case might have just as easily charged the offense in language to have justified this proof; but the pleader, having chosen to narrow the inquiry down to whisky, is bound thereby. The Court of Appeals of Kansas, in discussing this proposition, says: "It is elementary that a defendant must be tried upon the identical charge which is preferred against him. He cannot be charged with doing one thing, and be found guilty of doing another even though a similar thing. Here the defendant was...