Clendenning v. State

1910 OK CR 11, 106 P. 540, 3 Okla. Crim. 379, 1910 Okla. Crim. App. LEXIS 157

Opinion

PEE CURIAM.

The attorney for the state filed the follow-confession of error:

“Comes now the state of Oklahoma, by Fred S. Caldwell, as counsel to the Governor, and represents to this honorable court that, as appears at page 33 of the record in the above-named cause, the trial court instructed the jury, in paragraph No. 6 of the instructions, as follows: ‘If you believe from the evidence that the defendant did not, on or about the day and in’ the county and state aforesaid, deliver to the said Frank Engles whisky, and rer ceive in exchange therefor money or other valuable consideration, or if there is a reasonable doubt in your mind as to the guilt of the defendant, then it is your duty, under the law, to render á verdict of not guilty/ To the giving of the above instruction the defendant duly excepted at the time. This honorable court has, in the case of Weber v. State, 2 Okla. Cr. 329, 101 Pac. 355, held that an instruction identical in substance with the foregoing instruction constitutes prejudicial error. Wherefore, on the authority of the said case of Weber v. State, supra, the state of Oklahoma prays that the judgment of the trial court in the above- named cause be reversed and said cause remanded to the county court of Creek county, state of Oklahoma, for a new trial.”

The confession of error is sustained, and upon the authorities cited in Miller v. State, ante, p. 374, 106 Pac. 538, the judgment of conviction is set aside, and the cause remanded for a new trial.