Hadley v State

Hadley v State
1912 OK CR 136
122 P. 945
7 Okl.Cr. 122
Case Number: No. A-1120
Decided: 04/18/1912
Oklahoma Court of Criminal Appeals

(Syllabus by the Court.)

1. INTOXICATING LIQUORS Criminal Prosecutions Sufficiency of Evidence.

2. APPEAL Record Case-Made.

Appeal from Superior Court, Muskogee County; Farrar L. McCain, Judge.

Roscoe Hadley was convicted of violating the prohibitory liquor law, and appeals. Affirmed.

S.V. O'Hare, for appellant.

Smith C. Matson, Asst. Atty. Gen., for the State.

FURMAN, P.J. Appellant was found guilty in the superior court of Muskogee county for violating the prohibitory liquor law of the state, and his punishment was assessed at a fine of $200 and 30 days' confinement in the county jail.

The fifth ground relied upon by appellant in his motion for a new trial is as follows:

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"Because the jury which tried the defendant was not impaneled as provided by law, and was not a legal jury, in this, to wit: That during the same term of the superior court of Muskogee county, Okla., at which this defendant was tried, and on the day immediately preceding the trial of this defendant, a jury was duly impaneled and sworn in said court to try the case of the State of Oklahoma v. S.H. Pate. And that after said jury had been impaneled and sworn to try said cause, a continuance of the cause of the State of Oklahoma v. S.H. Pate was had by the court until the following morning; the said jury being admonished by the court that they were still in the trial of said cause. And that on the calling of the case of the state of Oklahoma against this defendant, four of the said jurymen, then engaged in the trial of the case of the State of Oklahoma v. S.H. Pate, were impaneled and sworn to try the cause against this defendant, and the said four jurymen did so sit on the trial of this defendant. That this defendant had no knowledge or information that the aforesaid jurymen were engaged in the trial of the case of the State of Oklahoma v. S.H. Pate until after the verdict in this case had been rendered."

This motion for a new trial was duly sworn to by appellant, but the transcript of the record does not contain any statement or certificate of the trial judge on this subject. Allegations contained in a motion for a new trial as to occurrences which took place in open court, of which the trial judge had personal knowledge, will not be considered upon appeal unless the case-made contains proper recitals of what did occur, duly certified to by the trial judge. See Rial v. State, ante, 122 P. 558. We therefore cannot consider this question on appeal.

Appellant insists that the testimony does not support the verdict. We have carefully examined the record, and we do not see how the testimony of the state can be true and the appellant can possibly be not guilty. It was proven: That appellant was conducting a so-called drug store in the city of Muskogee. That on the 17th day of December, 1910, his place of business was searched for intoxicating liquors by the officers of Muskogee county. That the officers went back behind the prescription case, and there they found a box five feet long and four feet wide sitting on the floor. That they moved this

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box and found a hole cut in the floor. That they raised up the lid over this hole and there found concealed 12 quarts of whisky. They also found one or two barrels of empty beer bottles in this room. There was a bar on the south side of the room. Appellant was present when the officers removed the box and found the hole in the floor and discovered the whisky. That when the officers found the whisky appellant laughed and said he had worked almost all night the night before to make this place. It is inconceivable that appellant should have gone to this trouble to conceal the whisky if he was keeping it in his drug store for a lawful purpose. It is also proven that a few days prior to the 17th day of December the place of business of appellant had been searched for intoxicating liquors by the officers, and they found there a quantity of whisky, beer, and wine; that they found the whisky under the floor by the prescription case. The state also introduced a certificate of a United States license issued to appellant and one Tom Hadley to engage in the business of retail liquor dealers in Muskogee, dated July, 1910, on which the sum of $25 tax was paid. This certificate was duly signed by the internal revenue collector for the district of Kansas. We are at a loss to see how a stronger case could be made out. Appellant took the witness stand in his own behalf and testified he was a legally registered pharmacist, and had been since statehood, but did not in any manner deny one word of the testimony offered by the state. We think that the evidence conclusively establishes the guilt of appellant.