Key v. StateKey v. State
- Reporters:
- , , ,
- Before:
- Doyle
Appellant, Gus Key, was tried upon an information charging that he did have in his possession one pint of whisky with the unlawful intent to sell the same. The jury returned a verdict finding him guilty and fixing his punishment at a fine of $100 and confinement in the county jail for 60 days. He has appealеd from the judgment rendered upon such conviction.
The first contention is that the evidence is insufficient to sustain the verdict.
W. R. Highnight, chief of police, testifies:
“I had Mr. Simms go upstairs in the Moose Hall; Mr. Hathcoсk to go across the street; and I told Mr. Fraley to call Mr. Key; I witnessed the call, and answers the best I could; Mr. Fraley called, he said, ‘Is this six,’ so Fraley just told him that this was ‘six at the Mоose Hall.’ In a few minutes Mr. Sims came up with the whisky. Mr. Sims is dead. I did not see Mr. Key at any time betwеen the phone call until he came and made bond.”
Creed Fraley testifies:
“I did. the calling. Called number six аnd talked to somebody. I did not talk to Mr. Key; I think it was Carry Smithers. The Moose Lodge is a couple of doors down from the Diamond drug store; I was in _ the police station; Mr. Sims came first; in a few minutes Mr. Key came, and put up bond.”
Charley Hathcock testifies:
“We had it fixed to watch him; Mr. Sims was to go uрstairs; Creed Fraley to call him. I was standing across the street. Key came out of the drug store and went upstairs; I stayed where I was. In four or five minutes-both came down; Mr. Sims wеnt to the police station. Mr. Key went to get *57 Ms coat; I did not see Mm with anything. To the bеst of my knowledge, a four-ounce bottle was brought to the police station. Mr. Simms is nоw dead. I heard Mr. Key’s statement in the police court. I don’t remember his testimony; I believe he said Sims poked his gun in his ribs, and told him to stick them up, and pulled a bottle out of his bosom. He said he did not know what it was; he made some remark that Mr. Sims put this whisky on him; that he did not hаve the whisky. He said that he was not iguilty.”
On cross-examination:
“He made some kind of a statement around there in the city court. All I know is what Sims told me; that’s all.”
The state rested, and defendant demurred to the testimony on the ground that the same is insufficient to prove the commission of any offense, and asked the court to instruct the jury to return a verdict of acquittal, which the court refused to do. Exception reserved.
As a witness in his own behalf, defendant testified: •
“I did not testify or make any statеment about this transaction in the police court or the federal court. A phone call came; some one answered. I started to the Moose Hаll in my shirtsleeves. I was about half way up the stairs when Officer C. J. Simms said, ‘Stick ’em up.’ I said, ‘What do yоu want?’ He reached in his pocket and pulled out this bottle; I said, ‘Sims, this is the dirtiest deal yоu ever done in your life.’ I went around to the station about 15 minutes afterwards. They had mе charged with being drunk and disturbing the peace; I did not ‘carry any whisky or anything of an intoxicаting nature when I left the drug store; I did not see anybody except Sims. I deliver soda fountаin drinks to any place that orders. I did not make a statement anywhere that Sims toоk this off of my person. He did not get it off me.”
It is insisted that “there is absolutely no proof оf the corpus delicti, which in this case would be the actual posses *58 sion by defеndant of whisky; that neither of the three witnesses testified that they saw any whisky, much less any whisky in defendant’s possession, or that Sims took any whisky off of Key.”
To warrant or sustain a conviction there must be evidence sufficient to prove that the offense was committed. This court has held that in a criminal ease a conviction cannot be had on the extrajudicial confessions of the defendant, without evidence aliunde of the corpus delicti, but direct and positive proof of the corpus delicti is not indispensable; like any other fact the subject of judicial investigation, it mаy be proved by circumstantial evidence. Shires v. State, 2 Okla. Cr. 89, 99 Pac. 1100; Choate v. State, 12 Okla. Cr. 560, 160 Pac. 34, L. R. A. 1917A, 1287.
It is made the duty of the trial сourt, where it deems the evidence insufficient tq warrant a conviction, to advisе the jury to acquit. Section 2713, Comp. Stats. 1921.
Under this section the defendant may presеnt to the court his right to an acquittal as a matter of law for its ruling and decision, whethеr the evidence is of such a character or quality as to warrant a conviction. If this was not the rule, the jury would in all cases be the sole judge of the question.
Carefully considering the state’s testimony in this case, we think the court erred in overruling the demurrer to the evidence, and in refusing to advise the jury to return a verdict of acquittal. Because of the insufficiency of the evidence, the judgment is reversed.
MATSON, P. J., and BESSEY, J., concur.