Cowherd v. State , 6 Okla. Crim. 708 ( 1912 )

E.M. Cowherd, plaintiff in error, was convicted in the superior court of Muskogee county of the offense of having unlawful possession of intoxicating liquor with the intent to sell or otherwise dispose of the same, and was, on February 4, 1911, sentenced to serve a term of thirty days in the county jail and to pay a fine of two hundred dollars. To reverse this judgment an appeal was taken. The Attorney General concedes by confession of error that the judgment should be reversed. The testimony tending to show possession is insufficient. There was also another error committed which requires a reversal. In submitting the case to the jury the court charged in concluding an instruction given: "Unless the defendant proves by a preponderance of the testimony that he had no intention of selling the liquor found in his possession." It is manifest that under this instruction the trial court placed the burden on the defendant to show by a preponderance of the testimony that he had no intention of violating provisions of the prohibition law. This instruction alone is sufficient for the reversal of this case. The confession of error is approved and sustained. Wherefore the judgment is reversed.