Lowry v. State

Court of Criminal Appeals of Oklahoma

Lowry v. State

1911 OK CR 59, 113 P. 992, 5 Okla. Crim. 187, 1911 Okla. Crim. App. LEXIS 62

CourtCourt of Criminal Appeals of Oklahoma

DecidedMarch 7, 1911

DocketNo. A-194.

StatusPublished

Cited by2 cases

This text of 1911 OK CR 59 (Lowry 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.

Bluebook

Lowry v. State, 1911 OK CR 59, 113 P. 992, 5 Okla. Crim. 187, 1911 Okla. Crim. App. LEXIS 62 (Okla. Ct. App. 1911).

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Opinion

ARMSTRONG, Judge.

The appellant, Matt Lowry, was convicted on the 12th day of November, 1908, in the county court of Kiowa county, on a charge of having liquor in his possession for the unlawful purpose of selling the same. He filed motions for new trial and in arrest of judgment, both of which were overruled, and he excepted.

The record in this case shows that the appellant sold whisky in small quantities to three different persons, on three different dates, each time selling all that the proof showed he had; but there is nothing in the record to show whether he had any quantity of whisky in his possession, other than that which witnesses say they purchased from him, and there is nothing to show whether he procured that from other persons or from a supply in his possession. Proof of sales of intoxicating liquor are sufficient to convict a person on a charge of selling whisky; but proof of sales, standing alone, is not .sufficient to sustain a verdict for having unlawful possession of whisky for the purpose of sale. When it is shown that all defendant had was sold, the unlawful possession in such eases is merged into the sale.

The appellant in this case should have been prosecuted for selling whisky in three different cases. The proof in the record is wholly insufficient to sustain this charge. The court below should have arrested the judgment, and permitted the county attorney to proceed against the appellant for selling intoxicating liquor, rather than for having unlawful possession of same.

The judgment is reversed, and the case remanded, with directions to the court below to sustain the motion in arrest of judgment and permit the county attorney to proceed against the appellant for the unlawful sale of whisky.

FURMAN, PRESIDING Judge, and DOYLE, Judge, concur.

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ARMSTRONG, Judge.

The appellant, Matt Lowry, was convicted on the 12th day of November, 1908, in the county court of Kiowa county, on a charge of having liquor in his possession for the unlawful purpose of selling the same. He filed motions for new trial and in arrest of judgment, both of which were overruled, and he excepted.

The record in this case shows that the appellant sold whisky in small quantities to three different persons, on three different dates, each time selling all that the proof showed he had; but there is nothing in the record to show whether he had any quantity of whisky in his possession, other than that which witnesses say they purchased from him, and there is nothing to show whether he procured that from other persons or from a supply in his possession. Proof of sales of intoxicating liquor are sufficient to convict a person on a charge of selling whisky; but proof of sales, standing alone, is not .sufficient to sustain a verdict for having unlawful possession of whisky for the purpose of sale. When it is shown that all defendant had was sold, the unlawful possession in such eases is merged into the sale.

The appellant in this case should have been prosecuted for selling whisky in three different cases. The proof in the record is wholly insufficient to sustain this charge. The court below should have arrested the judgment, and permitted the county attorney to proceed against the appellant for selling intoxicating liquor, rather than for having unlawful possession of same.

The judgment is reversed, and the case remanded, with directions to the court below to sustain the motion in arrest of judgment and permit the county attorney to proceed against the appellant for the unlawful sale of whisky.

FURMAN, PRESIDING Judge, and DOYLE, Judge, concur.

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Bluebook (online)

1911 OK CR 59, 113 P. 992, 5 Okla. Crim. 187, 1911 Okla. Crim. App. LEXIS 62, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lowry-v-state-oklacrimapp-1911.

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