There are many decisions of this court wherein we have held that exceptions in a statute similar to the exception herein, which provides for a written release from a reputable physician, are a defense to be pleaded by the defendant. Smythe v. State, 2 Okla. Cr. 286, 101 P. 611, 139 Am. St. Rep. 918; Penn v. State, 13 Okla. Cr. 367, 164 P. 992, L.R.A. 1917E, 668; Carr v. State, 25 Okla. Cr. 289, 220 P. 479; Key v. State, 29 Okla. Cr. 436, 234 P. 791. It is fundamental that it is not necessary in an information to allege any fact which is not necessary for the state to prove to secure a conviction.
Under numerous decisions of this court, both prior to and after the amendment of the statute, as above stated, this court has held that it was not necessary to allege in the information that the intoxicating liquor "was capable of being used as a beverage" where it is alleged that one was in possession of "whisky, same being a spirituous and intoxicating liquor", and where it is further alleged that the possession was "with the wrongful and unlawful intention * * * of violating the prohibitory laws of the State of Oklahoma by bartering, selling, or giving away, and otherwise furnishing the said intoxicating liquors to others." Duke v. State, 48 Okla. Cr. 154, 290 P. 348; Ex parte Spencer, 7 Okla. Cr. 113, 122 P. 557; Flowers v. State, 8 Okla. Cr. 503, 129 P. 81; Haynes v. State, 45 Okla. Cr. 172, 284 P. 74; Burkes v. State, 45 Okla. Cr. 376, 283 P. 587; Key v. State, 29 Okla. Cr. 436, 234 P. 791. We therefore hold that the court did not err in overruling the demurrer to the amended information filed in this case.
Both instructions permit of conviction upon testimony showing simply unlawful possession. In the case of Key v. State (Okl. Cr.), 234 P. 791, where the defendant was charged with wilfully and unlawfully having in his possession certain intoxicating liquors with intent to sell, barter, etc., the trial court instructed the jury as follows: "If you believe from the evidence beyond a reasonable doubt that the defendant, Gus Key, did in Carter County, Okl., on or about the 31st day of January, 1922, have possession of Jamaica ginger, you will find the defendant guilty," etc. In passing upon this charge, the supreme court ruled as follows.