Ging v. State

1937 OK CR 2, 64 P.2d 344, 60 Okla. Crim. 284, 1937 Okla. Crim. App. LEXIS 2

• Court: Court of Criminal Appeals of Oklahoma
• Decided: January 9, 1937
• Docket: No. A-9103.
• Status: Published

Opinion

PEE CTJBIAM.

Tbe plaintiff in error, hereinafter referred to as tbe defendant, was by information charged with unlawful possession of intoxicating liquor; was tried, convicted, and sentenced to pay a fine of flOO, and to be imprisoned in tbe county jail for sixty days.

Tbe evidence in tbe record is brief, and in substance is as follows: Neis Nelson, a deputy sheriff, stated:

“I went to tbe home of Frank Ging, on tbe 24'th day of May, 1985; I bad an order of appraisement to appraise the land where Frank Ging lived. Accompanying me were A. A. Smith, A. O. Curtis and J. H. Bagenstos; when we drove up to tbe bouse I told the others to remain in tbe car and I would tell Mr. Ging we were going to appraise the land; I walked to tbe bouse and beard something go ‘Boom’; I walked a little farther and saw Mr. Ging come out of tbe milk house and bounce a keg on tbe cement walk and yell, Where is your search warrant?’ I just said ‘Hello,’ and told him I was not coming to search anything, and that I had an order of appraisement to appraise tbe land; be ran back to tbe milk bouse and brought out another ten gallon keg; tbe stopper came out and I smelled of it, and put the stopper back in the keg; another keg bad broken and I-straightened it up; then I called to the appraisers to see what was there. I told tbe defendant I was going to have to place him under arrest. I asked tbe parties with me to taste it and see if it was whisky. Mr. Ging told me I could search tbe rest of the buildings, and I told him I did not come there to search. I told the men to go ahead and appraise the place. We loaded the whisky up, took out ten gallons and took the rest to Alva.”

On cross-examination witness stated that he had an order of appraisement from the court, and had gone there with the other parties to appraise the land, and not for the purpose of searching for intoxicating liquor, and that he did not search anything.

The other parties with witness Nelson testified in substance the same as Nelson. The defendant did not offer any testimony.

Eight errors have been assigned by the defendant alleged to have been committed by the trial court. In support of his contention that the third instruction of the court is erroneous, the defendant relies upon Crowdis v. State, 59 Okla. Cr. 297, 58 Pac. (2d) 154. A careful examination of the case relied on by the defendant shows that the facts in Crowdis v. State, supra, are not similar to the facts in this case.

It will be seen from the evidence that the officer had not gone toi defendant’s, home for the purpose of searching for intoxicating liquor, but when the officer approached, and knowing he was an officer, the defendant brought the whisky from the milk house and threw it on the cement walk, evidently trying to burst the kegs and destroy the whisky, which action of the defendant in bringing the whisky out of the milk house and throwing it on the walk took place in the presence of the officer. The evidence clearly shows the guilt of the defendant of the unlawful possession of the intoxicating liquor.

The verdict of the jury is excessive, and should be modified from a fine of $100 and 60 days in jail, to a fíne of $100 and 30 days in jail, and as modified the judgment is affirmed.