Opinion
No. A-6473.
Opinion Filed August 3, 1929.
1. New Trial — Insufficiency of Evidence to Sustain Verdict. A new trial on the ground that the verdict of the jury is contrary to the evidence will not be granted, merely because the court may be of the opinion that the weight of the evidence is against the verdict; but the court must find that there is no evidence from which the jury could rationally conclude that the appellant was guilty, unless it appears from the record that the jury were influenced by improper motives in arriving at their verdict.
2. Intoxicating Liquors — Conviction of Maintaining Liquor Nuisance on Circumstantial Evidence. A person may be convicted of maintaining a liquor nuisance by keeping a place where intoxicating liquor is sold and given away, and where people are permitted to resort for the purpose of drinking such liquor as a beverage in violation of the law, by circumstantial evidence.
3. Same — Proof of General Reputation of Defendant's Place.
Appeal from County Court, Pawnee County; L.N. Kimrey, Judge.
Wilson Hilbert was convicted of maintaining a liquor nuisance, and he appeals. Affirmed.
Clark Clark, for plaintiff in error.
W. Lee Johnson, Co. Atty., for the State.
The plaintiff in error, hereinafter called defendant, was convicted in the county court of Pawnee county on a charge of maintaining a liquor nuisance — that is, a place where intoxicating liquor was sold, and where people congregated and resorted for the purpose of drinking intoxicating liquors — and his punishment was fixed at 30 days in jail and that he pay a fine of $100.
The defendant orally argued the case in this case, and took the position that there was no evidence in the record supporting the verdict of the jury, and has ably presented this contention in his brief.
The following witnesses testified for the state: Allen N. Jones, Dan Lancaster, L.R. Richardson, E.O. Hartwick, Wilson Plumlee, and Glen Livesay. It will serve no good purpose to set out the evidence of these witnesses. If the jury believed the evidence offered by the state, it was sufficient to establish that defendant's place bore the general reputation of being a place where intoxicating liquors were sold. It showed specific sale; it showed the presence of liquor containers and paraphernalia for selling liquor; it showed the class of people who frequented the place; it showed that drinking people congregated there for the purpose of drinking intoxicating liquor; it showed that the defendant himself was present, that he was intoxicated, and that there was a strong smell of liquor upon and about him, that his place had frequently been raided, and that as fast as one individual would be arrested for selling liquor there that another would take his place. The evidence was that the defendant knew of the violations of law taking place on his premises.
Defendant was prosecuted under section 7002, Comp. St. 1921, on a charge of keeping a place where intoxicating liquor was sold, and where people congregated and resorted for the purpose of drinking intoxicating liquor. Under a charge of this kind it is not necessary to prove that the defendant himself actually sold liquor; it is only necessary to prove that the defendant was in charge of the premises and that the people congregated at the place, the sales were made, and the liquor drank, with the knowledge and consent of the defendant.
In the case of Cameron et al. v. State, 13 Okla. Cr. 692, 167 P. 339, this court said:
"Where defendants are charged with maintaining a liquor nuisance, evidence of the general reputation of the place, as to its being a place where intoxicating liquors were kept for sale, and where people congregated to drink the same, is admissible."
In the case of Ostendorf v. State, 8 Okla. Cr. 362, 128 P. 143, this court said:
"Where a defendant is charged with keeping and maintaining a place at which intoxicating liquors are sold or illegally disposed of, it is competent for the state to prove the general reputation of such place in such community touching this matter, and that it was a place where persons who were in the habit of drinking intoxicating liquors congregated during the week and on Sundays."
The evidence being sufficient to support the verdict of the jury, and the errors of law complained of not being fundamental, the cause is affirmed.
EDWARDS, P.J., and DAVENPORT, J., concur.