Cox v State

Cox v State
1909 OK CR 135
105 P. 369
3 Okl.Cr. 129
Decided: 12/07/1909
Oklahoma Court of Criminal Appeals

C. B. COX et al.
v.
STATE.

On motion for rehearing. Motion denied.

Syllabus

¶0 APPEAL--Petition for Rehearing--Requisites and Sufficiency. A petition for a rehearing based upon the ground that a controlling decision which was not called to the attention of the courts is in conflict with the decision of which a rehearing is sought must show that such conflict exists.

Elliott & Howard, for appellant.

OPINION:

ON PETITION FOR REHEARING.

PER CURIAM.

¶1 Rule 9 of this court (1 Okla. Crim. ix, 101 P. ix) governs applications for a rehearing. It is as follows:

"(1) Application for a rehearing in any cause, unless otherwise ordered by the court, shall be made by a petition to the court signed by counsel and filed with the clerk within fifteen days from the date on which the opinion in the cause is filed. Such petition shall briefly state the grounds upon which counsel relies for a rehearing, and show either that some question decisive of the case and duly submitted by the counsel has been overlooked by the court, or that the decision is in conflict with an express statute or controlling decision, to which the attention of the court was not called, either in brief or oral argument, or which has been overlooked by the court, and the question, statute, or decision so overlooked must be distinctly and particularly set forth in the petition. If such application is granted, the cause shall be assigned for rehearing, and the clerk shall notify both parties or their counsel of the time when such will be had, and such time may be given for argument or brief as the court shall allow."

¶2 The petition for a rehearing is as follows:

"Comes now B. C. Cox, the appellant in the above-entitled cause, and most respectfully shows the court: That on the 2d day of November, 1909, a decree and judgment was rendered by this honorable court against this appellant, affirming a judgment and sentence of the county court of Rogers county, Okla., wherein the said county judge of Rogers county did on the 9th day of March, 1908, duly sentence this appellant to 60 days' imprisonment in the county jail of Rogers county, and to pay a fine of $ 400 upon a charge of the unlawful sale of intoxicating liquors charged to have been sold on or about January 23, 1908, in Rogers county, Okla. (1) That said decision affirming the judgment and sentence of the county court of Rogers county against this appellant overlooked the decision of this honorable court in the case of Titsworth v. State, 2 Okla. Crim. 268, 101 P. 288, which said case is controlling in this case, and wherein this honorable court lays down the following rule: It is the present opinion of the writer that in cases against defendants for keeping intoxicating liquors for sale the general reputation of such places, in the community in which they are situated, touching this point, is admissible in evidence, just as it is permissible to prove a general reputation of a bawdyhouse, a gambling house, or of any place which constitutes a nuisance. Section 14, art. 3, of the enforcement act (page 608, c. 69, Sess. Laws 1907-08), expressly makes such places where liquors of any kind are sold, manufactured, bartered, or given away or otherwise disposed of in violation of the law nuisances. This, however, would not be true in cases in which the defendant was charged with a specific sale of such liquors. Such evidence would only be admissible where the defendant was charged with keeping liquors for sale at a certain place. (2) That the court in affirming said judgment and sentence against this appellant overlooked the rule as laid down by this honorable court in the case of Sturgis v. State, 2 Okla. Crim. 362, 102 P. 57, which case is almost identical with the case of appellant, and the decision of which case is controlling in this case, and the rule being laid by the court as follows: 'The safe rule is to require some evidence of such acting together before such acts and declarations of others concerned in the commission of an offense are admitted in evidence when such acts were not committed or statements were not made in the presence of the defendant. Under these rules of law, the question now presents itself as to whether there is in the record any evidence that the defendant was concerned with the Holmes and McKinley in the sale of intoxicating liquor, except the testimony as to the statements of Holmes and McKinley to the witnesses who testified to such statements. * * * There is not one word of evidence in this record except hearsay which proves, or tends to prove, that the defendant was concerned with Holmes or McKinley in the sale of intoxicating liquors.' Page 66, 102 P.

¶3 (3) That the court in affirming said judgment and sentence against this appellant overlooked the rule laid down by this honorable court in the case of State v. Mask, 2 Okla. Crim. 283, 101 P. 293, where the court lays down this rule: 'Upon the trial for the offense of having possession of intoxicating liquors with the intention of violating the provisions of the prohibition law, where no positive testimony tending to show such possession was offered to show possession purely circumstantial and did not show actual or constructive possession of such liquors as charged, held, that the evidence is insufficient to sustain the conviction.' (4) That the court in affirming the judgment and sentence in the case against this appellant overlooked the rule as laid down by this court in the case of Lightle v. State, 2 Okla. Crim. 334, 101 P. 608, wherein the court lays down the following rule governing the introduction or evidence, which rule is controlling in this case; said rule being as follows: 'Before liquor can be offered in evidence for the inspection of the jury, such liquor must be identified as having been in the possession and having been unlawfully disposed of by the defendant.' The appellant further states to the court that the above decision as well as many other cases decided by this honorable court relative to the violation of the prohibition provisions of the Constitution and laws of the state of Oklahoma have been handed down by the court since the brief of the appellant was filed with this honorable court, and the decisions therefore could not have been cited to the court in said brief. Wherefore your petitioner, said appellant, prays the honorable court to grant a rehearing in said cause, and that said cause may be reheard by this honorable court. Respectfully submitted. Elliott & Howard, Attorneys for appellant."

¶4 While a number of the decisions of this court are quoted from in the petition for a rehearing, which it is claimed were overlooked by this court, yet it is not alleged in a single instance that there is any conflict between the quotations made and any portion of the decision of the court in this case. In fact, no attempt is made to show any such conflict. In failing to show or attempt to show such conflict the petition is not in compliance with rule 9, and is therefore clearly insufficient, and fails to present anything for the consideration of this court.

Rehearing denied.