Montgomery v State

Montgomery v State
1914 OK CR 217
147 P. 1054
11 Okl.Cr. 415
Case Number: No. A-2043
Decided: 09/09/1914
Oklahoma Court of Criminal Appeals

(Syllabus by the Court.)

1. INTOXICATING LIQUORS Prosecution Proof.

2. APPEAL Harmless Error Admission of Evidence.

3. EVIDENCE Character of Accused Rebuttal Revenue License.

4. INTOXICATING LIQUORS Prosecution for Unlawful Sale Issues.

5. APPEAL Ground for Reversal.

Appeal from County Court, Oklahoma County; John W. Hayson, Judge.

James Montgomery was convicted of selling intoxicating liquors, and appeals. On rehearing, reversed.

James S. Twyford, for plaintiff in error.

Page 416

ARMSTRONG, P.J. The plaintiff in error, James Montgomery, was convicted at the March, 1913, term of the county court of Oklahoma county on a charge of selling intoxicating liquors and his punishment fixed at a fine of $100 and imprisonment in the county jail for a period of 90 days. The issues of fact are clear-cut. The prosecuting witness testified that he bought two bottles of beer from the accused and paid him 50 cents therefor. The accused denied having made the sale. Impeaching testimony was introduced as to the prosecuting witness. The accused offered testimony as to his good character, and the state introduced testimony to show that accused had, prior to the commission of the offense, paid a special internal revenue tax and secured a retail liquor dealer's license. The offense is alleged to have occurred in October, 1912. The license secured by the accused expired in July, 1912.

The sole and only assignment argued for reversal of this judgment is that the trial court erred in permitting the introduction of the proof of the payment of the special tax to the United States government, and it is insisted that under the doctrine laid down in Tucker v. State, 9 Okla. Cr. 555, 132 P. 689, the judgment should be reversed for that reason alone. Upon a careful review of the record we are unable to conclude that this judgment should be reversed on that contention. That the evidence complained of was not admissible at the time it was offered by the state there can be no doubt; in fact, it is doubted whether this class of testimony is admissible on a charge of selling intoxicating liquors. Intent is conclusively presumed when the sale is proved and the introduction of the internal revenue license adds nothing, as the question of intent is not an issue in the class of cases we are now considering.

The court in instructing the jury told them that the payment of the special tax constituted prima facie evidence of an intention upon the part of the party paying such tax to violate the law, but that before they could find the defendant guilty they must find from the evidence beyond a reasonable doubt that he did violate the law as charged in the information. There

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is no occasion for county attorneys taking the chances necessarily incident to the introduction of this kind of testimony. In this case, however, the accused placed his good reputation as a law-abiding citizen in issue, and we are of opinion that the fact that he had paid the license was admissible for the purpose of meeting the issue raised by him. The jury had all the witnesses before them and all the facts, and the question of their credibility and the sufficiency of testimony, when there is any competent testimony, is exclusively for them under our system of jurisprudence. The people of this state have, through their lawmakers, chosen to place this responsibility on the jury and it is solely theirs. The courts have no right to repeal these statutes that no one has ever contended were improperly passed. The power of both the trial and appellate courts has been limited by the Constitution and statutes of the state, and this court is not responsible for these enactments. Whatever injustices may arise by reason of these provisions, if any, are not chargeable to us. It is our duty to enforce the law as we find it, and not to re-enact it by judicial construction to suit the wishes of the bar.

We are unable to determine, from a careful review of the record, that the judgment of the trial court should be reversed on account of errors of law.

It is therefore affirmed.

DOYLE, J., concurs. FURMAN, J., absent on account of illness.

ON REHEARING.

REVERSED.

PER CURIAM. It is contended, on rehearing in this case, that this court overlooked a question which is fatal to the judgment.

During the progress of the trial, counsel for the plaintiff in error called as a witness one Strimple, and offered his testimony upon a material issue. The court excluded the testimony of the witness upon the ground that there was a case pending in court

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against said witness, and that to permit him to testify in the case at bar would, in the judgment of the trial court, grant immunity to the witness. The court said, among other things:

"* * * The court does not desire to grant him immunity from that case by reason of testifying in this case, and for that reason the witness is not permitted to testify."

Counsel for Montgomery stated to the court that he was also counsel for Strimple and that he was not seeking immunity for Strimple, but desired his testimony in order that justice might be done Montgomery. The court again denied the request and exceptions were allowed.