Opinion
No. 9939
Opinion Filed September 13, 1921.
(Syllabus.)
Jury — Right to Jury Trial — Forfeiture of Car Used to Transport Liquor.
In a proceeding brought by the state under the provision of chapter 188, Session Laws 1917, providing for the forfeiture to the state of an automobile used in transporting liquor in violation of the prohibitory laws of the state, where an issue of fact is raised by the pleadings, the claimant is entitled to a jury trial. Keeter v. State ex rel. Saye, County Attorney, 82 Okla. 89, 198 P. 866.
Error from County Court, Tulsa County; H.L. Standeven, Judge.
Action by the State of Oklahoma to forfeit one Paige touring car No. 92,052, W.J. McNeil, claimant. Judgment of forfeiture in favor of the State. Claimant brings error. Reversed and remanded.
Baldwin Spaulding, for plaintiffs in error.
S.P. Freeling, Atty. Gen., and W.C. Hall, Asst. Atty. Gen., for defendant in error.
W.J. McNeil prosecutes this appeal to reverse the judgment of the county court of Tulsa county forfeiting to the state of Oklahoma one Paige touring car No. 92,052. The claimant, W.J. McNeil, demanded a trial by jury, which was by the trial court refused, and the refusal of the trial court to grant a jury trial is assigned as error.
This court, in the case of Keeter v. State ex rel. Saye, County Attorney, 82 Okla. 89, 198 P. 866, held that the claimant in this class of cases is entitled to trial by jury, and under the holding of the court in that case this cause must be reversed for a new trial.
Counsel for the plaintiff in error challenges the sufficiency of the allegations in the officer's return, upon the ground that the same are insufficient to state a cause of action in favor of the state, and as this cause must be reversed upon the ground that the claimant was entitled to a jury trial we deem it sufficient to say, with respect to the sufficiency of the information, that the better practice would be to amend the information by stating that the automobile was used to convey intoxicating liquors from one point in the state of Oklahoma to another point in the state, and if the particular place in the state from which said liquors were conveyed is unknown to the affiant, it is proper to so state.
The former opinion filed herein is withdrawn, and the cause is reversed and remanded, with directions to the trial court to grant a new trial.
HARRISON, C. J., PITCHFORD, V. C. J., and MILLER, ELTING, and NICHOLSON. JJ., concur.