Etter v State

Etter v State
1910 OK CR 183
111 P. 957
4 Okl.Cr. 230
Case Number: No. A-511
Decided: 11/22/1910
Oklahoma Court of Criminal Appeals

(Syllabus by the Court.)

1. APPEAL AND ERROR Case-Made Service and Settlement Record.

2. INTOXICATING LIQUORS Imitations Information Duplicity.

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was intoxicating or that it contained more than one-half of one per cent. alcohol.
(c) It is a violation of the prohibition law of this state to sell or otherwise furnish any spirituous, vinous, fermented or malt liquor or any substitute or imitation thereof, regardless of the per cent. of alcohol contained therein.

Appeal from Ottawa County Court; W.D. Cooter, Special, Judge.

Defendant was convicted for violating the prohibition law and was fined $50.00 and sentenced to 30 days' confinement in the county jail. Defendant appealed. Appeal dismissed.

F.B. Fulkerson, for appellant.

Fred S. Caldwell, for the State.

FURMAN, PRESIDING JUDGE. 1. This case-made must be stricken from the record. The record fails to show that the case-made was ever served on the county attorney or was ever submitted to or approved by the county judge. We must therefore sustain the motion made on behalf of the state to strike out what purports to be the case-made in this case.

2. The transcript of the record shows that a motion in arrest of judgment was filed, in which the sufficiency of the information was attacked upon the ground that it charged two offenses. The charging part of the information is as follows:

"1. That the said John Etter on said date and in said county and state, then and there being, did then and there wilfully and unlawfully, sell, barter, give away and otherwise furnish to one John Lucky two bottles of `Rochester,' the same being a spirituous, fermented and malt liquor capable of being used as a beverage, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the state.

"2. That the said John Etter, on said date and in said county and state, then and there being, and on the occasion and by the same acts above set forth, did then and there wilfully and unlawfully, sell, barter, give away and otherwise furnish to one John Lucky, a quantity of an imitation and substitute of a spirituous, vinous, fermented and malt liquor, named `Rochester,' capable of being used as a beverage, contrary to the form of the statutes, in

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such cases made and provided, and against the peace and dignity of the state. VERN E. THOMPSON,

"County Attorney."

It is seen from this that while the information did contain two counts, they both relate to the same transaction, the first count charging the sale of two bottles of "Rochester," same being a spirituous, fermented and malt liquor capable of being used as a beverage, the second count charging the sale of the same liquor, but alleging that it was an imitation and substitute for spirituous, vinous, fermented and malt liquor, named "Rochester." Both counts of the information are in the language of the statute. They refer to the same transaction, charged but one offense, and the information is therefore sufficient. For a complete discussion of this question see Moss v. State, infra, decided at the present term of this court. The trial judge therefore did not err in refusing to sustain the motion in arrest of judgment.

Exceptions were reserved to the following instruction of the court.

"It is a violation of the prohibitory liquor law of this state to sell or otherwise furnish any spirituous, vinous, fermented or malt liquor or any imitation substitute therefor regardless of the per cent. of alcohol contained therein."

This instruction was a proper interpretation of the law. See Moss v. State, infra, decided at the present sitting of this court. We find no error in the record, and the judgment of the lower court is therefore affirmed.