Duca v State

Duca v State
1920 OK CR 128
192 P. 1105
18 Okl.Cr. 711
Decided: 06/22/1920
Oklahoma Court of Criminal Appeals

Appeal from County Court, Pittsburg County; S.F. Brown, Judge. Joe Duca and Mrs. Joe Duca were convicted of violating the

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prohibition law, and they appeal. Affirmed as to Mrs. Joe Duca, and reversed as to Joe Duca.

W.N. Redwine, for plaintiff in error.

S.P. Freeling, Atty. Gen., and W.C. Hall, Asst. Atty. Gen., for the State.

PER CURIAM. Joe Duca and Mrs. Joe Duca were jointly indicted by the grand jury for selling whisky to one Frank White. The cause was duly transferred from the district court to the county court. Upon their trial they were convicted, and in accordance with the verdict were each sentenced to be confined for 30 days in the county jail and pay a fine of $50. From the judgments they appeal.

The principal contention is that the evidence does not support the verdict. Frank White, the only witness for the state, testified that at the time alleged he was chief of police of Hartshorne, where the defendants lived, and at that time bought a pint of whisky from Mrs. Joe Duca and paid her $1.50 for it, and that the mayor of Hartshorne was present at the time. He was then asked. "Was Joe Duca there?" and answered: "I don't think he was. If he was I did not see him in the house." The state rested, and the defendant Joe Duca moved the court to direct a verdict of acquittal, "for the reason there is not sufficient evidence to convict said Joe Duca." As witness in their own behalf, the defendants each testified that they did not sell any whisky to Frank White.

Obviously, the evidence is insufficient to sustain the conviction of Joe Duca. While the testimony of the complaining witness that he bought the whisky of Mrs. Joe Duca is contradicted by the testimony of both of the defendants, yet the jury were the judges of the credibility of the witnesses, and they have seen fit to believe the complaining witness, and we find no sufficient reason to disturb their finding as to the defendant Mrs. Joe Duca.