Barron v. State , 25 Okla. Crim. 413 ( 1923 )

BESSEY, J.

Plaintiff in error, Augustus Barron, here referred to as the defendant was convicted in the county court of Pittsburg county on March 22, 1922, of unlawfully conveying intoxicating liquor in said county. His punishment was assessed at a fine of $50 and a term of 30 days in jail. From the judgment on this verdict he appeals.

The Attorney General has filed a confession of error in this case on the ground that the evidence at most amounts to no more than a suspicion against the defendant.

There were but three witnesses for the state. W. L. Johns, a deputy sheriff, testified that there was a picnic and dance at a park near Carbon; that he saw a Ford car with the curtains closed pass near the dance platform, and observed that the car was parked about 150 yards distant, where two men and two ladies got out of the car; that he recognized none of them; that about an hour later he approached the car to search for liquor, and found the defendant sitting in the front seat. The officer asked defendant if that was his ear, and defendant replied that it was not. By the use of a search light which was on the front seat,' the officer discovered some bottles of whisky on the back seat. . Defendant told the officer that it did not belong to him, and that he knew nothing about it. A negro boy who assisted the officer also testified, but shed no additional light on the incidents just recited. The same is true of another bystander who witnessed the arrest of defendant.

The defendant testified that he had just gotten into the ear (that he did not dance, and was there waiting for a companion), when the officer came up and at the point of a gun said: “What have you got in this car?” Defendant replied: “I don’t know what is in this car.” The officer then looked in the back seat, where he found a bottle. Another witness testified that defendant had gone to the park with him in a Dodge truck. There was no testimony that defendant sold or transported whisky, or that he was a person of that character.

The confession of error is sustained, and the cause reversed.

MATSON, P. J., and DOYLE, J., concur.