Young v State

Young v State
1912 OK CR 183
123 P. 699
7 Okl.Cr. 359
Case Number: No. A-1003
Decided: 05/18/1912
Oklahoma Court of Criminal Appeals

(Syllabus by the Court.)

INTOXICATING LIQUORS Criminal Prosecutions Evidence Sufficiency. In a prosecution for the unlawful sale of intoxicating liquor, the evidence is held to support the verdict, and that no reversible error was committed on the trial.

Appeal from Atoka County Court; J.H. Linebaugh, Judge.

Tom Young was convicted of the unlawful sale of liquor, and appeals. Affirmed.

J.G. Ralls, for plaintiff in error.

Chas. West, Atty. Gen., and E.G. Spilman and Smith C. Matson, Asst. Attys. Gen., for the State.

Page 360

DOYLE, J. The plaintiff in error, Tom Young, was convicted on an information which charged him with the unlawful sale of a pint of whisky to J.M. Hembree, and on the 23d day of November, 1910, he was sentenced, in accordance with the verdict of the jury, to serve a term of 30 days in the county jail, and to pay a fine of $50. From the judgment and an order overruling the motion for a new trial, the defendant appeals.

The evidence, briefly stated, is as follows: J.M. Hembree, to whom it is charged the whisky was sold, testified, in substance, that on the 16th day of November, 1910, he was given a dollar to go and buy a pint of whisky; that he went to Lankford's lumber yard, where he found the defendant working, and that he there bought a pint of whisky from him; that he went back to Smith and Presson, two deputy sheriffs, and gave them the whisky. The deputy sheriffs, Smith and Presson, testified that the witness Hembree was given a dollar to go and buy whisky, that they followed and kept in sight, that Hembree went into Lankford's lumber yard, and there remained from 5 to 30 minutes, and then returned with the whisky. Presson testified that he marked the dollar that he gave to witness Hembree, and that when they arrested the defendant in the lumber yard, they found the marked dollar among the defendant's money. The defendant, testifying on his own behalf, admitted that he saw the witness Hembree in the Lumber yard, but denied that he had any conversation with him about whisky, or that he asked him for any whisky. Jim Grooms testified, as a witness for the defendant, that he was present at the time that Hembree was there, and no whisky was sold him. Lankford testified that he did not see any transaction between them. During the cross-examination of Hembree, he was asked if he had been engaged in selling whisky, to which he answered, "Yes." He was then asked the question: "How long were you engaged in it all together?" This was objected to by the state, and objection sustained.

It is contended by the defendant's counsel that "the court should have sustained the motion for a new trial, for the reason that there was no evidence to warrant a conviction."

Page 361

In this connection, it is argued that the witness Hembree was an accomplice and should be corroborated; and that here there was no corroborative evidence. That the witness Hembree was an accomplice is not correct; and his testimony is corroborated by the two witnesses, Presson and Smith, in all respects, except as to the actual sale, which was not made in their presence. The truth or falsity of the testimony of the witness Hembree was a question for the jury. The evidence of this witness, if true, was sufficient to convict the defendant. The jury found it to be true; and their verdict received the approval of the trial court in overruling the motion for a new trial. All questions of fact must be determined by the jury, as is said in some of the cases. The jurors are the sole judges of the credibility of the witnesses who testify before them, and they are not bound to, nor can they be compelled to, credit the testimony of any witness, whether controverted or not.

Certain exceptions were taken to the rulings of the court on the admission of evidence, and the remaining assignments of error are based thereon. We think they are without merit.