Rouney v. State , 32 Okla. Crim. 111 ( 1925 )

The information in this case charged:

"That Robert Rouney and E.A. Richardson did in Carter county, and in the state of Oklahoma, on or about the 9th day of August, 1922, and before the presentment hereof, commit the crime of unlawful possession in the manner and form as follows, to wit: That on the date and in the county aforesaid, the aforesaid defendants had in their possession 94 gallons of Choc beer, with the unlawful intention to bartering, selling, giving away, and otherwise disposing of the same, contrary to," etc.

On the trial the jury returned a verdict finding the defendants guilty as charged in the information and fixing their punishment each to pay a fine of $500 and to be confined for 6 months in the county jail. From the judgment rendered on the verdict, an appeal was taken by filing in this court June 13, 1924, petition in error with case-made, but no brief has been filed, and, when the case was called for final submission, it was submitted on the record.

Of the various errors assigned, it is only necessary to notice two, which are in effect: First, the information is insufficient in that it does not state facts sufficient to constitute an offense; second, that the evidence is insufficient to support the verdict and judgment.

Obviously, the information is fatally defective. It does not allege that the so-called "Choc beer" was intoxicating liquor, nor that it contained as much as one-half of 1 per cent. of alcohol, and was capable of being used as a beverage. By repeated decisions of this court, it is held that the courts do not take judicial knowledge of the alcoholic contents of "Choc beer," since its manufacture is not uniform, and it is not a liquor per se intoxicating. Rambo v. State,31 Okla. Cr. 214, 238 P. 869; Skelton v. State, 31 Okla. Cr. 343,239 P. 189; Smith v. State, 30 Okla. Cr. 111, 235 P. 553. It follows that the court erred in overruling the defendants' demurrer thereto.

The evidence shows that the so-called "Choc beer" was found by the officers on a branch, midway between the homes of the defendants. As witnesses in their own behalf, they denied ownership or possession of the same. There was no competent evidence tending to show that the so-called "Choc beer" was intoxicating liquor.

For the reasons indicated, the judgment is reversed, and the cause remanded to the trial court, with direction to sustain the defendants' demurrer to the information.

BESSEY, P.J., and EDWARDS, J., concur.