Bartino v State

Bartino v State
1910 OK CR 140
109 P. 80
4 Okl.Cr. 46
Case Number: No. A-347
Decided: 05/27/1910
Oklahoma Court of Criminal Appeals

(Syllabus by the Court.)

APPEAL Absence of Evidence.

Appeal from Pittsburg County Court; R.W. Higgins, Judge.

Joe Bartino was convicted of violation of prohibition law, and appeals. Reversed.

J.H. Stolper and Robert Tarter, for plaintiff in error.

Fred S. Caldwell, for the State.

PER CURIAM. The plaintiff in error was convicted in the county court of Pittsburg county on an information which charged him with "unlawfully having in his possession and under his control certain spirituous liquor, to wit, whisky, with the intent then and there to sell, barter, give away, and otherwise furnish." The judgment and sentence were entered on July 12, 1909, from which judgment an appeal was taken by filing in this court on October 8, 1909, a petition in error with case-made attached, including proper proof of service of notices of appeal.

Sixteen assignments of error are alleged in the petition, but it is only necessary to consider the fifteenth, that "the verdict of the jury is contrary to the evidence." Counsel for the state concedes that the evidence is insufficient to support the verdict and judgment. An examination of the case-made shows that no evidence is adduced proving or tending to prove that the defendant has committed any offense. It is a cardinal principal in our jurisprudence that the jury is the ultimate tribunal for the investigation and determination of questions of fact. Where, however,

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the prosecution fails to offer any testimony tending to prove the offense charged, or whether the evidence offered tends to prove anything pertinent to the issue is a question for the court, and where there is an entire absence of evidence to support the charge, the court should dismiss the prosecution.