295 P. 400 | Okla. Crim. App. | 1931
Plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county of the possession of one pint of corn whisky, and his punishment fixed by the jury at a fine of $50 and imprisonment in the county jail for 30 days.
The state called but one witness, who testified that he saw the defendant on the side of the running board of a car, and that defendant, being crippled with infantile paralysis, rolled off the side and around in front of the car and started to pour out a pint of whisky, that he took the bottle away from defendant, and that about one-half *2 of the whisky was left in the bottle. The state offered no evidence other than the one-half pint of whisky to establish the intent of defendant.
Section 1, ch. 123, Session Laws 1923-24 (2d Ex. Sess.), makes the possession of intoxicating liquor in excess of one quart prima facie evidence of intent to violate the law.
It is unlawful to possess any quantity of intoxicating liquor with intent to sell the same. Where the amount is less than one quart, the state must establish that intent, the same as any other material fact in the case.
In the case at bar, the quantity being insufficient to make a prima facie case, and the state having offered no proof of unlawful intent, the evidence was insufficient to support the verdict of the jury.
For the reason stated, the cause is reversed.
DAVENPORT, P. J., and EDWARDS, J., concur.