Walker v. State , 7 Okla. Crim. 494 ( 1912 )

The plaintiff in error, Ed Walker, was convicted in the county court of Pawnee county at the March, 1911, term on a charge of having the unlawful possession of intoxicating liquor with the intent to violate section 3, c. 69, Session Laws 1907-08, and his punishment fixed at imprisonment in the county jail for a period of 30 days and a fine of $50.

The information upon which the conviction in this case is based is as follows:

"I, the undersigned, county attorney of said county, in the name, by the authority, and on behalf of the state of Oklahoma, give information that on the 12th day of February, 1911, in said county of Pawnee, and state of Oklahoma, one Ed Walker, a person then and there being, did then and there willfully, knowingly, unlawfully, commit the crime of unlawful possession of intoxicating liquors in that he, the said Ed Walker, did have the possession of two cases of whisky with the knowing, willful, and unlawful intent on the part of him, the said Ed Walker, of violating the provisions of section 3, chapter 69, of the Session Laws of Oklahoma for the year 1907-08, contrary to the form of the statutes and the Constitution of the state of Oklahoma in such cases made and provided, and against the peace and dignity of the state of Oklahoma."

A demurrer was filed to the information and overruled, and exceptions saved.

It will be noted that the information charges unlawful possession of intoxicating liquor with the intent to violate the provisions of section 3, c. 69, of the Session Laws of Oklahoma for the year 1907-08. An examination of that chapter discloses the fact that it is divided into three different articles, each of which has a number of sections, all of them a section 3. Just which section 3 the county attorney was guessing at, we are not able to determine.

An information charging the unlawful possession of whisky should charge the possession with intent to sell the same without any reference to a specific section, chapter, or article of any statute. The gist of this offense is the possession coupled with the intent to sell. The possession without the intent to sell does not constitute an offense any more than an intent to sell without the possession would constitute an offense. The information is entirely too indefinite, and the demurrer thereto should have been sustained.

The facts in this case disclose possession only. No effort was made to prove intent to sell, and there is nothing disclosed by the record from which a court or jury could legitimately conclude that the whisky was intended for sale.

The judgment of the trial court is reversed, and the cause remanded for further proceedings according to law.