Opinion
No. A-10749.
September 3, 1947.
(Syllabus.)
1. Searches and Seizures — Introduction of Affidavit and Search Warrant by Defendant Sufficient. Where one's premises are searched for intoxicating liquor upon a properly issued search warrant, and the defendant offers the affidavit and search warrant in evidence on the motion to suppress the evidence, it is unnecessary for the state to introduce the same.
2. Same — Sufficiency of Facts Stated in Affidavit for Search Warrant. Where the affidavit to procure a search warrant is in positive terms, one will not be permitted to go behind the affidavit and show that the officer did not have sufficient knowledge of the charges alleged in the affidavit.
3. Same — admissibility of Evidence of City Policeman. The evidence of a city policeman who assisted a deputy sheriff in searching premises in the execution of a valid search warrant procured by the deputy, is not inadmissible for the reason that the premises searched were outside of the city limits.
4. Intoxicating Liquors — Evidence Sufficient to Prove "Tax-Paid Whisky" Intoxicating. When the evidence reveals that the liquor found was "tax-paid whisky" it is unnecessary to further prove its alcoholic content, or that it is intoxicating.
5. Same — Trial — Prejudicial Error in Instruction Placing Burden on Defendant to Prove Innocence. An instruction which places the burden upon a defendant of producing evidence to prove his innocence is prejudicial and will require reversal of case.
6. Same — instruction on Prima Facie Evidence Held Reversible Error. An instruction which informs the jury that the possession of in excess of one quart of intoxicating liquor is prima facie evidence of an intention to barter, sell or otherwise dispose of the same contrary to law, and further contains this clause: "But while this is prima facie evidence of an intent on the part of the defendant to barter, sell or otherwise dispose of the same contrary to law, it is a rebuttable presumption and can be removed by proof to the contrary" without informing the jury that it does not make it obligatory upon them to convict unless they are satisfied beyond a reasonable doubt, after a consideration of all the evidence, of the guilt of the defendant, is error requiring the reversal of the case.
Appeal from Court of Common Pleas, Oklahoma County; Glen O. Morris, Judge.
Carl Hughes was convicted of the crime of unlawful possession of intoxicating liquor, sentenced to pay a fine of $50 and to serve 30 days in jail, and he appeals. Reversed and remanded, with directions.
A. E. Pearson, of Oklahoma City, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Warren H. Edwards, Co. Atty., of Oklahoma City, for defendant in error.
Defendant, Carl Hughes, was charged in the court of common pleas of Oklahoma county with the crime of unlawful possession of intoxicating liquor on April 17, 1945. to wit: Eighty-three four-fifths quart bottles of tax-paid whisky. He was tried, convicted, and fined $50 and sentenced to serve a term of 30 days in the county jail, and has appealed.
This case involves the same questions of law presented by the case of Hughes v. State of Oklahoma, 85 Okla. Cr. 25, 184 P.2d 625, decided by this court. The identical instruction which caused the reversal in that case was given, and excepted to, in this case.
For the reasons stated in the case of Hughes v. State, 85 Okla. Cr. 25, 184 P.2d 625, the judgment of the court of common pleas of Oklahoma county is reversed, and the case remanded, with instructions to try this defendant again on this charge.
JONES and BRETT, JJ., concur.