Butler v State

Butler v State
1916 OK CR 86
159 P. 1090
12 Okl.Cr. 530
Case Number: No. A-2623
Decided: 09/30/1916
Oklahoma Court of Criminal Appeals

INTOXICATING LIQUORS Offenses.

Hal Johnson, Judge.

Appeal from the County Court of Pottawatomie County.

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George Butler, convicted of a violation of the prohibitory law, appeals. Reversed.

Mark Goode, for plaintiff in error.

S.P. Freeling, Atty. Gen., R. McMillan, Asst. Atty. Gen. for the State.

PER CURIAM. On information charging that he did have in his possession two gallons of whisky and eighty bottles of beer with the unlawful intent to sell the same, George Butler, was convicted in the county court of Pottawatomie county and his punishment fixed at a fine of Four Hundred and Ninety-Three Dollars and Thirty Cents, and confinement in the county jail for the term of four months. From the judgment rendered on the verdict he appealed by filing in this court on January 5, 1916, a petition in error with case-made.

The evidence shows that in serving a search warrant against the place where the defendant Butler lived with his family in the negro part of the city of Shawnee, the sheriff and his deputies found there intoxicating liquors as charged in the information.

The defendant as a witness in his own behalf testified that he had resided in Shawnee with his family for seventeen years, and that the liquor seized was for his own personal use and the use of his wife; that he did not intend to sell, barter, give away or otherwise furnish said liquor.

Of the numerous assignments of error it is only necessary to consider the one that the court erred in instructing the jury.

It appears that the court gave the following instruction:

"You are instructed that under the law of this State, the keeping in excess of one gallon of spirituous liquor, constitutes prima facie evidence of intent to convey, sell or otherwise dispose of such liquor, and places upon the defendant the burden of raising a reasonable doubt of his guilty intent to so convey, sell or dispose of such liquor. Given and excepted to by defendant. Hal Johnson, County Judge."

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