Barngrover v. State , 28 Okla. Crim. 22 ( 1924 )

I dissent from the conclusion reached by the majority of the court in this case. The statute makes "all places where any intoxicating liquors are kept or possessed by any person in violation of any provision of the act" a public nuisance. While the record is not definite as to the amount of whisky discovered by the searching officers at the defendant's residence, a quantity of this whisky was introduced in evidence. How much also is not shown by the record. Whether a quantity sufficient to be prima facie evidence of an intent to violate the law is not disclosed. In this court the burden is on the appellant to bring before the court enough of the record to enable the court to pass intelligently upon all the questions presented in the appeal. If the appellant does not do so, all presumptions will be resolved against him on appeal. There is no presumption of innocence after a verdict of guilty. Jones v. State,10 Okla. Crim. 216, 136 P. 182, 137 P. 122; Edwards v. State,9 Okla. Crim. 306, 131 P. 956; Coleman v. State, 6 Okla. Crim. 271,118 P. 594; Starr v. State, 9 Okla. Crim. 210, 131 P. 543; Johnson v. State, 21 Okla. Crim. 17, 204 P. 311.

The appellant as a witness in the trial court testified that he did not know that this whisky was in his residence. He did not claim he had it there for his own use. So the jury, in my opinion, were not justified in finding that, if the whisky was there and in the possession of the appellant, it was there for a lawful purpose.

Appellant's conduct at the time of the search clearly indicates to my mind a guilty conscience. When the officers were outside of his residence, and had made known their presence there, the appellant was on the lower floor of the residence. He immediately went up stairs. This whisky was located in the second story. The officers heard the breaking of glass, and when they went into the house and up stairs they found two glass gallon bottles and two quart bottles which had evidently contained whisky, also some baled hay, a hammer, and a funnel. These bottles had been broken, and the broken glass was on the floor, and recently spilled whisky on the floor, and the hay smelled strongly of whisky, and a quantity of whisky was found in some of the broken pieces of bottle. The defendant admits that he had been living in that house five months at the time the search was made. He admits that he had put the hay in the room in which the whisky was found. However, he denied that he knew anything about the whisky being in that room. It does not stand to reason that a man of ordinary intelligence could live in a house for five months with two five-gallon bottles of whisky and two quart bottles in a room in his house, unconcealed, without his having gained some knowledge of its presence there. This conclusion is strengthened by the fact that he himself placed the bales of hay in that same room, and that the bales of hay and the whisky were close together cannot be successfully denied under the proof in this case. That the bottles had been recently broken at the time of the raid is evidenced by the fact that there was a considerable quantity of whisky on the floor of the room, and that the hay smelled strongly of whisky. Alcohol evaporates rapidly when exposed to the air, and the smell soon disappears. This is a matter of common knowledge which the jury undoubtedly considered. The circumstances of the finding of a funnel in the room where this whisky was discovered indicates that whoever had the whisky was using the funnel for the purpose of filling smaller receptacles from the five-gallon bottles.

There is also some circumstantial evidence in the record from which the jury might have inferred that the appellant made a sale of a half pint of whisky to a man by the name of Feaster. Feaster was not produced as a witness by either side. The record shows that he left that community shortly after this occurrence and had not been heard of since. The state should have obtained his presence, perhaps, by having arrested him for unlawful conveyance of intoxicating liquor, but the fact that he was not produced by either party, in my opinion, creates no greater presumption one way than the other. All together, the circumstances are consistent with the inference of guilt.

No question is raised in this appeal as to the validity of the search. There is evidence that the place where this liquor was found had the general reputation of being a place where intoxicating liquors were kept for sale and sold.

I do not think this court should substitute its judgment for that of the jury and determine what the proper inferences are from the circumstantial evidence, and what weight should be given to evidence that is conflicting.

It has always been the rule of this court that before a conviction will be reversed upon the ground that the verdict is contrary to the evidence this court must find that there is no testimony in the record from which the jury could rationally conclude that the appellant was guilty. Ostendorf v. State,8 Okla. Crim. 362, 128 P. 143; Caple v. State, 3 Okla. Crim. 621,105 P. 681; Bishop v. State, 9 Okla. Crim. 175, 130 P. 1173.

This conviction is not based solely on proof of the general reputation of the appellant's place of residence as being a place where intoxicating liquors were sold.