Stack v State

Stack v State
1909 OK CR 109
103 P. 1068
2 Okl.Cr. 697
Case Number: No. 309
Decided: 09/25/1909
Oklahoma Court of Criminal Appeals

(Syllabus by the Court.)

1. APPEAL Review Briefs.

2. SAME Review Conflict of Evidence.

Appeal from Comanche County Court; James H. Wolverton, Judge.

W.H. Stack was convicted of violating the prohibitory law, and he appeals. Affirmed.

S.M. Cunningham, for appellant.

Fred S. Caldwell, for the State.

FURMAN, PRESIDING JUDGE. The brief of counsel for the defendant sets out the motion for a new trial as follows:

Page 698

"Motion for New Trial. State of Oklahoma, County of Comanche. In the County Court of Comanche County, Oklahoma. State of Oklahoma v. W.H. Stack. Comes now the defendant, W.H. Stack, and moves the court to set aside the verdict rendered against him in the above styled case on the 1st day of April, 1908, and grant him a new trial because the same is not supported by the law and the testimony. [Signed.] S.M. Cunningham, Attorney for Defendant."

Under the repeated rulings of this court all questions not clearly presented in the brief of counsel, unless involving fundamental errors, are waived. The motion for a new trial, copied in the brief, does not point out any specific error, or in any manner raise any other issue except that the verdict is not supported by the law and the evidence. There is no reference to any questions saved by exceptions. So there is but one question before us, and that is as to the sufficiency of the evidence to support the verdict.

W.T. Glen, a deputy sheriff of Comanche county, testified that on the 28th day of November, 1907, he met a man named Hall on the streets of Lawton, and that Hall was drinking, and he asked Hall where he got his whisky. Upon objection the witness was not allowed to tell what Hall said. The witness then went with Hall to the back door of defendant's place of business. Witness searched Hall, and Hall did not have a bottle of whisky on him. Hall then entered the defendant's place of business. The witness climbed up on a barrel and looked into the room through a glass window, and saw the defendant in the room. The witness saw the defendant go around behind a bar in the room and get a bottle and give it to Hall. Hall then opened the door and came out and began to drink. Witness got down off of the barrel, and took the bottle away from Hall. Witness testified positively that the bottle contained whisky and that this occurred in Comanche county, Okla.

I.I. Mitchell testified that he was a constable. His testimony was substantially the same as that of the preceding witness, except that this witness did not look in at the window and did not swear positively to the contents of the bottle which Hall got in

Page 699

defendant's place of business. This witness said it looked like "booze." The defendant denied having sold or given any whisky to Hall. It was simply a question as to the credibility of the witnesses, and, the jury having believed the testimony for the state, there is nothing left for this court to do except affirm the judgment of the lower court.