Barngrover v. State

William Barngrover, plaintiff in error here, defendant in the trial court, was, in the county court of Payne county, on the 18th of October, 1922, convicted of keeping and maintaining a public nuisance, where spirituous liquors were bartered, sold, and given away, with his punishment fixed at confinement in the county jail for a period of thirty days and to pay a fine of $50.

The defendant urges that the conviction should be set aside because the evidence did not support the verdict; that the conviction is based upon evidence obtained by the search of the private residence of the defendant, without any showing that this residence was a public place, and without proof that spirituous liquor was there bartered, sold, or given away, excepting only the testimony of the raiding officers, who said that the place had the reputation of being a place where intoxicating liquors were sold.

The five officers who made the raid were the only witnesses for the state. In making the raid they procured evidence, largely circumstantial, that the defendant had had possession of an undetermined quantity of whisky, but proof of possession is only one of the elements of the offense of keeping and maintaining a public nuisance. To sustain a conviction on that charge there must be proof tending to show that the place was a place of public resort where intoxicating liquors were consumed or from which distribution was made. There was no proof whatever that this residence was a place of public resort and no positive proof that any person had procured intoxicating liquor there, excepting the testimony of a policeman who, in reply to the question, "Did you watch that place on the 20th day of May?" said, "I watched old man Feaster. He was headed towards Barngrover's, going down that way, and I was watching for him to come back. He went to Barngrover's and turned east, and in a little bit he came back." This policeman then testified that he arrested Feaster with a bottle of whisky in his possession; that he took him over to the police station, and then, with other officers, returned and raided the Barngrover residence.

This residence was in the vicinity of other residences, near stores and shops, and this officer did not see Feaster enter the residence or come out of it, and did not know positively where Feaster got the whisky.

The raiding officers said the defendant did not at once respond to their demand for admittance; that they heard moving footsteps inside the house and the sound of breaking glass. After an entrance was effected, they found in the upper story of the residence a quantity of baled hay and some loose hay on the floor; they found that some of this hay was damp and gave off an odor of whisky; and they found a broken bottle containing a small quantity of whisky. They also found fragments of two glass containers of one-gallon capacity, and a hammer nearby, also a funnel.

The defendant testified that this place was his residence, occupied by the five members of his family; that he was and had been employed steadily in lucrative positions by oil companies; that the upstairs portion of his residence consisted of two rooms which were used as storerooms and playrooms for the children; that there was some junk — odds and ends, including some bottles — in this upstairs part of the house when he moved in; that he did not place the bottles there and did not break them, and knew nothing about any funnel being there. Defendant denied that he ever had whisky in this upstairs part of the house.

Under this state of the evidence, even though the jury found that there was or had been whisky in the house, it does not necessarily follow that the defendant had it there for the purpose of sale or for any illegal purpose constituting a necessary element of maintaining a public nuisance. None of the officers actually knew of anything indicating that whisky was being sold there, except that the place bore such reputation.

A portion of the statute upon which this prosecution was based (section 7022, Comp. Stat. 1921), is as follows:

"All places where any spirituous, vinous, fermented or malt liquors, or any imitation thereof or substitute therefor; or any malt liquors or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as one-half of one per centum of alcohol, measured by volume, and which is capable of being used as a beverage, except preparations compounded by any licensed pharmacist, the sale of which would not subject him to the payment of the special tax required by the laws of the United States; is manufactured, sold, bartered, given away or otherwise furnished in violation of any provision of this act; and all places where any such liquor is kept or possessed by any person in violation of any provision of this act; and all places where persons congregate or resort for the purpose of drinking any such liquor, are hereby declared to be public nuisances, and upon the judgment of any court of record finding such place to be a nuisance under this section, the sheriff, his deputy, or undersheriff, or any constable of the proper county, or marshal or police of any city where the same is located, shall be directed to shut up and abate such place by taking possession thereof and destroying all liquors found therein, the keeping or sale of which is prohibited by this act, together with all signs, screens, bars, bottles, glasses, and other property used in keeping and maintaining said nuisance; and the owner or keeper thereof shall, upon conviction, be adjudged guilty of maintaining a public nuisance, and shall be punished by a fine of not less than fifty dollars nor more than five hundred dollars, and by imprisonment in the county jail not less than thirty days nor more than six months."

In numerous cases this court has held that, where one is charged with keeping a place in such manner as to constitute a public nuisance, its general reputation as such may be shown. Hurst v. State, 25 Okla. Crim. 102, 219 P. 151; Friedman v. State, 19 Okla. Crim. 124, 198 P. 350; Bland v. State,18 Okla. Crim. 514, 196 P. 732; Tindell v. State, 18 Okla. Crim. 721,196 P. 555; Felas v. State, 16 Okla. Crim. 631, 185 P. 839; Sibenaler v. State, 16 Okla. Crim. 576, 185 P. 448; Davis v. State, 16 Okla. Crim. 372, 182 P. 908; Dunbar v. State,15 Okla. Crim. 513, 178 P. 699; Ward v. State, 15 Okla. Crim. 150,175 P. 557; Cameron v. State., 13 Okla. Crim. 692, 167 P. 339; Caffee v. State, 11 Okla. Crim. 263, 145 P. 499.

In each of the cases just cited there was evidence of a positive character indicating that the place was a place of public resort, or that it contained bar fixtures or other paraphernalia indicating an illegal intent to sell or dispose of liquor, or proof that the place was frequented by persons who habitually violated the liquor or gambling laws of the state.

The corpus delicti cannot be proven by reputation alone. It would be a dangerous and unwarranted assumption of authority for this court by judicial construction to read into this public nuisance statute a proviso that the keeping or maintaining of a public place where liquors are sold or consumed could be established by reputation alone. The true character and the reputation of a place might be quite different. A bad reputation might be founded on mere rumor. Insidious slanderers or tale-bearers might give to a person or place a bad reputation entirely undeserved. Reputation alone, without some evidence of a positive nature, should not be held sufficient to establish a specific fact or condition.

Quoting from the state's brief in Patterson v. State,17 Okla. Crim. 495, 190 P. 271, this court said:

"The evidence, attempting to show that persons congregated and resorted on the defendant's premises for the purpose of drinking such liquors, wholly fails. The evidence as to the general reputation of the premises is without force."

In Francis v. State, 16 Okla. Crim. 543, 185 P. 126, this court said:

"A legal conviction for keeping a bawdyhouse cannot be had upon evidence alone that the house in question has the general reputation [of being a place] where lewd and lascivious persons of both sexes congregate for the purpose of unlawful sexual intercourse."

And in the case of Putman v. State, 9 Okla. Crim. 535,132 P. 916, 46 L.R.A. (N.S.) 593, the first syllabus reads:

"In prosecutions for keeping a house of ill fame, it is competent to introduce evidence of the general reputation of the house in the neighborhood in which it is situated as to its being a place where lewd and lascivious persons of both sexes congregate for the purpose of unlawful cohabitation or sexual intercourse. But such evidence alone will not support a verdict. It must be corroborated by some other fact or circumstance tending to prove the character of the house."

Unless the state on another trial of this cause can produce some direct evidence tending to show that the residence of defendant was a place of public resort, or that it was a place where intoxicating liquor was kept for sale, this prosecution should abate.

The judgment of the trial court is reversed and the cause remanded for further proceedings in accordance with this opinion.

DOYLE, J., concurs.