Opinion
No. A-340.
Opinion Filed May 16, 1910.
(Syllabus by the Court.)
1. APPEAL — Review of Evidence — Sufficiency. Where the evidence is conflicting, and that on behalf of the prosecution such that if believed by the jury a verdict of guilty should result, a judgment of conviction will not be set aside on the ground that the verdict is contrary to the evidence.
2. INTOXICATING LIQUORS — Indictment — Negativing Exceptions.
Appeal from Pittsburg County Court; R.W. Higgins, Judge.
Tom Beasley was convicted of selling whisky; and was sentenced to pay a fine of $50.00 and to be imprisoned in the county jail for a term of thirty days. From an order overruling a motion for a new trial and in arrest of judgment he appeals. Affirmed.
James R. Miller, for plaintiff in error.
Fred S. Caldwell, for the State.
Four grounds for a reversal are urged here, namely: that the court erred in overruling plaintiff in error's motion for a new trial; that the court erred in overruling plaintiff in error's motion in arrest of judgment; that the verdict of the jury was contrary to the law; and that the verdict was contrary to the evidence.
We have examined the evidence and find it conflicting. The prosecuting witness testified that he bought whisky from the plaintiff in error, stating the time and place of the purchase; the latter in his testimony denied the matter in toto. This presented a question as to the credibility of the witnesses and the weight and value to be given to their testimony; and of this the jury were the sole judges. This record shows no such condition as would justify this court in holding that the verdict was contrary either to the law or the evidence.
The motion in arrest of judgment was based upon the failure of the information, which was drawn under art. 3, chap. 61, Snyder's Comp. Laws of Okla., to negative the exceptions contained in article 1 of said chapter. It has already been twice held by this court in construing this same act that it is not necessary that the indictment or information negative the exceptions contained in article one. Smythe v. State, 2 Okla. Cr. 286, 101 P. 611; De Graff v. State, 2 Okla. Cr. 519, 103 P. 538. And it would seem that the rule of stare decisis would now be applicable to this question.
The assignment that the court erred in overruling plaintiff in error's motion for a new trial presents no question not already considered.
Finding no error, the judgment of the lower court is affirmed.
FURMAN, PRESIDING JUDGE, and DOYLE, JUDGE, concur.