This opinion was reversed on rehearing, so Pacific Reporter only published the opinion on rehearing. (See below.)
INTOXICATING LIQUORS — Unlawful Sale — Evidence — Sufficiency. In a prosecution for unlawfully selling intoxicating liquor, the evidence examined, and held sufficient to sustain the verdict, and that no reversible error was committed on the trial.
Appeal from County Court, Pottawatomie County; Hal. Johnson, Judge.
George Ollison was convicted of violating the prohibitory law, and he appeals. Affirmed.
Mark Goode, for plaintiff in error.
S.P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
DOYLE, P.J. On information filed in the county court of Pottawatomie county charging that he did sell one-half pint of whisky to one Geo. Hines, the plaintiff in error was tried and convicted, and by the judgment of the court he was sentenced to be confined for 60 days in the county jail and to pay a fine of $250 and the costs.
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From the judgment an appeal was taken by filing in this court on January 5, 1916, a petition in error with case-made. There was but one witness produced by the state.
G.W. Hines testified that he was deputy sheriff of Lincoln county, and on the day alleged he was at the defendant's place of business in the south part of the city of Shawnee, Pottawatomie county, and there bought from him a half pint of whisky; that by the defendant's direction he gave the money to pay for it to a fellow behind the counter, and the defendant then gave him the whisky.
As a witness in his own behalf, George Ollison testified that he saw the witness Hines at his place of business with other officers who raided his place on the day alleged; that the officers did not find any intoxicating liquors, and he did not sell the witness Hines any whisky.
Leuie Epperson, for the defendant, testified that he was at the defendant's place of business that day from 8:30 in the morning until the officers Carson, Cotterall, and witness Hines came there that evening, and that the witness Hines was not there that forenoon; that he did not go after any liquor for Hines, nor did he take any money for it; that he did not leave the place for a minute that day and did not see the witness Hines until he came with the officers.
After a careful examination and consideration of the testimony in the case, we are not prepared to say that the jury were not warranted in finding the verdict returned by them. The credibility of the witnesses and the weight and value to be given their testimony was a question solely for the jury's determination, and to reverse a judgment on the ground that the verdict is contrary to law and the evidence this court must find as a
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matter of law that the evidence is insufficient to warrant the conviction. The instructions fully and fairly presented the law of the case, and we have failed to find any material error in the record. It follows that the judgment must be, and the same is hereby, affirmed.
ARMSTRONG and BRETT, JJ., concur.
On Rehearing
Feb. 27, 1917
Published only in Pacific Reporter
(Syllabus)
During the argument to the jury by counsel for the defendant, a deputy sheriff, who verified the information, but who was not called and sworn to testify, interrupted counsel by asserting: "Yes, and he did, too," and "He is making me out a liar." Held, that by reason of such misconduct on the part of an officer of the court the defendant did not have that fair trial to which he was entitled under the law, and the trial judge erred in overruling the motion for a new trial.
Appeal from County Court, Pottawatomie County; Hal. Johnson, Judge.
George Ollison was convicted of violating the prohibitory law, and appeals. Reversed, and new trial granted.
Mark Goode, of Shawnee, for plaintiff in error. S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
DOYLE, P. J. On information filed in the county court of Pottawatomie county charging that he did sell one-half pint of whisky to one Geo. Hines, the plaintiff in error was tried and convicted, and by the judgment of the court he was sentenced to be confined for 60 days in the county jail and to pay a fine of $250 and the costs. From the judgment an appeal was taken by filing in this court on January 5, 1916, a petition in error with case-made. There was but one witness produced by the state.
G. W. Hines testified that he was deputy sheriff of Lincoln county, and on the day alleged he was at the defendant's place of business in the south part of the city of Shawnee, Pottawatomie county, and there bought from him a half pint of whisky; that by the defendant's direction he gave the money to pay for it to a fellow behind the counter, and the defendant then gave him the whisky.
As a witness in his own behalf, George Ollison testified that he saw the witness Hines at place of business with other officers who raided his place on the day alleged; that the officers did not find any intoxicating liquors, and he did not sell the witness Hines any whisky.
Leuie Epperson, for the defendant, testified that he was at the defendant's place of business that day from 8:30 in the morning until the officers Carson, Cotterall, and witness Hines came there that evening, and that the witness Hines was not there that forenoon; that he did not go after any liquor for Hines, nor did he take any money for it; that he did not leave the place for a minute that day and did not see the witness Hines until he came with the officers.
One of the errors assigned is that the defendant was denied a fair and impartial trial by reason of the misconduct of the complaining witness, D. D. Parsons, who interrupted the defendant's counsel in his argument to the jury by making statements of fact without being sworn as a witness. The record discloses that the information in this case was sworn to by D. D. Parsons, a deputy sheriff; that said Parsons was not called as a witness.
Defendant's counsel in his argument to the jury commented upon the fact that witness Hines was the only witness called by the state; that, if the complaining witness knew the facts, he would have testified. Thereupon Parsons rose to his feet and said, "Yes, and he did, too." To which interruption the defendant excepts.
"By the Court: You have been in court enough to know better than to testify unless you are called on the stand.
"By D. D. Parsons: He is making me out a liar.
"By the Court; No, sir ; I do not think so."
The question presented is whether such misconduct on the part of an officer in attendance upon the court is sufficient to require a reversal of the judgment. The evidence in the case is very conflicting, and it appears probable that the defendant was prejudiced by such misconduct. A man cannot be tried and convicted of crime upon the unsworn statements of any person, and for this reason the trial court erred in overruling the motion for a new trial.
The judgment is therefore reversed, and a new trial granted.
ARMSTRONG and BRETT, JJ., concur.