Abbott v. State

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Comanche county on a charge of having the unlawful possession of intoxicating liquor and was sentenced to pay a fine of $125 and to serve 45 days in the county jail.

The record discloses that at the time charged a constable and a federal prohibition officer procured a search warrant to search a building and premises at 1202 Washington avenue, Lawton View addition, Comanche county, Okla. It is not stated either in the affidavit or the search warrant to what town, if any, the Lawton View addition is a part. The affidavit and warrant in that particular are insufficient under article 2, § 30, of the Constitution.

The testimony is that they discovered eight gallons of beer in a jar or churn; that it was not ready to bottle, but that, if given time, it would make 9 per cent. beer. Upon this point the evidence for the state is:

"Q. Did you taste this beer? A. Yes sir.

"Q. Are you able to state from your experience, whether or not this beer was intoxicating? A. Yes, sir. I judge it to be if it had time. This was new beer.

"Q. Was it ready to bottle? A. I don't think so.

"Q. Do you know what per cent. it was? A. No, sir. But give it time and it would make nine per cent."

The conviction cannot be upheld on this state of the record.

The case is reversed.