Carnish v. State

Court of Criminal Appeals of Oklahoma

Carnish v. State

1928 OK CR 156, 266 P. 789, 40 Okla. Crim. 41, 1928 Okla. Crim. App. LEXIS 107

CourtCourt of Criminal Appeals of Oklahoma

DecidedApril 28, 1928

DocketNo. A-6104.

StatusPublished

This text of 1928 OK CR 156 (Carnish v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Carnish v. State, 1928 OK CR 156, 266 P. 789, 40 Okla. Crim. 41, 1928 Okla. Crim. App. LEXIS 107 (Okla. Ct. App. 1928).

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Opinion

PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Murray county on a charge of transporting “home-brew Choc” and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The record discloses that defendant! had concocted some home-brew in the rear part of his restaurant and brought the Choc beer and set one case on the fender of the car, one outside the door , and had another in his hands when arrested. The evidence is that the lot extended 30 feet to the rear' of the building, and the car was right against the back door. This hardly constitutes a conveyance from one place in the state to another. Section 7002, Comp. St. 1921; De Graff v. State, 2 Okla. Cr. 519, 103 P. 538.

There is no evidence that the “home-brew Choc” contained as much as one-half of .1 per cent, of alcohol, or that it contained any alcohol. Two witnesses for the state say they “think” it was intoxicating. The witnesses do not *42 testify in positive terms and were not shown to be qualified to express an opinion as to its intoxicating qualities.

The case is reversed and remanded.

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PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Murray county on a charge of transporting “home-brew Choc” and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The record discloses that defendant! had concocted some home-brew in the rear part of his restaurant and brought the Choc beer and set one case on the fender of the car, one outside the door , and had another in his hands when arrested. The evidence is that the lot extended 30 feet to the rear' of the building, and the car was right against the back door. This hardly constitutes a conveyance from one place in the state to another. Section 7002, Comp. St. 1921; De Graff v. State, 2 Okla. Cr. 519, 103 P. 538.

There is no evidence that the “home-brew Choc” contained as much as one-half of .1 per cent, of alcohol, or that it contained any alcohol. Two witnesses for the state say they “think” it was intoxicating. The witnesses do not *42 testify in positive terms and were not shown to be qualified to express an opinion as to its intoxicating qualities.

The case is reversed and remanded.

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1928 OK CR 156, 266 P. 789, 40 Okla. Crim. 41, 1928 Okla. Crim. App. LEXIS 107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carnish-v-state-oklacrimapp-1928.

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