Kelso v State

Kelso v State
1927 OK CR 353
261 P. 377
38 Okl.Cr. 342
Decided: 12/03/1927
Oklahoma Court of Criminal Appeals

(Syllabus.)

Intoxicating Liquors Evidence Sustaining Conviction for Possession of Still.

Appeal from County Court, Grady County; J.E. Shelton, Judge.

John Kelso was convicted of having possession of a still, and he appeals. Affirmed.

J.B. Pope, for plaintiff in error.

Edwin Dabney, Atty. Gen., for the State.

EDWARDS, J. The plaintiff in error, hereinafter called defendant, was convicted in the county court of Grady county on a charge of having the possession of a still and was sentenced to pay a fine of $100 and to serve 30 days in the county jail.

The only assignment of error argued in the brief is that the evidence is insufficient to sustain the judgment. The record discloses that in June, 1925, certain officers went to the farm upon which defendant resided and

Page 343

had resided for about 12 years, and in a canyon about 250 yards from his residence discovered a still, together with a circular concrete vat about 6 feet in diameter and 7 or 8 feet deep, in which was mash. There was a well-defined trail leading from the residence down into the canyon to the immediate vicinity of the still. The evidence further shows that the cultivated land of defendant, and where at the time he was working, was beyond the still from the residence and about the same distance as the residence. Defendant testified in his own behalf that he did not own the still, had not seen the still or tank, and did not know it was on his premises.

Where circumstantial evidence is relied on for a conviction, the circumstances proved must be consistent with the guilt of defendant and inconsistent with his innocence. The circumstances here are consistent with his guilt. It seems wholly unreasonable that any other person could have gone into the premises of defendant so near to his residence and located between his farm lands and residence, with a trail leading from the residence to the place, and there have set up and have operated a still. These circumstances are inconsistent with the innocence of defendant and are sufficient to sustain the verdict and judgment.