Opinion
No. A-5116.
Opinion Filed October 24, 1925.
Trial — Error in Instructions Assuming Truth of Controverted Questions of Fact. It is error for the court, in its instructions to the jury, to assume the truth of a controverted question of fact.
Appeal from County Court, Pawnee County; L.N. Kimrey, Judge.
Henry Walls was convicted of selling intoxicating liquor, and he appeals. Reversed and remanded.
W.T. Cleeton, for plaintiff in error.
Geo. F. Short, Atty Gen., for the State.
From a conviction in the county court of Pawnee county the plaintiff in error, hereinafter called defendant, has appealed.
Only one assignment of error is argued in the brief of the defendant; i.e., that the court erred in his instructions to the jury. Instruction No. 7, in part, is as follows:
"The prosecution of this offense is not an issue between the defendant and the officers of the law, but the defendant is being prosecuted for an offense against the state of Oklahoma. * * *"
And instruction No. 8 is as follows:
"You are instructed that it is no less an offense to sell intoxicating liquor for any purpose to a sheriff or prosecuting attorney, or to an agent, detective, or representative of either than it is to sell to any one else; and a sale made to such officer or agent or detective, though solicited by him for the purpose of detecting the commission of the offense and of instituting prosecution therefor, is punishable the same as if the sale had been made to any other person and for other purposes."
These instructions assume the sale of whisky. This was a controverted question, and the assumption by the court that the sale was made is prejudicial.
The case is reversed and remanded.
BESSEY, P.J., and DOYLE, J., concur.