Opinion
No. A-7084.
Opinion Filed March 8, 1930.
1. Intoxicating Liquors — Evidence Sustaining Conviction for Possessing Whisky. Evidence examined and held sufficient to support the verdict of the jury.
2. Appeal and Error — Review — Matter Assigned as Error not Shown by Case-Made. A matter assigned as error in the motion for new trial and in the petition in error, but not shown by the case-made, will not be considered by this court.
Appeal from County Court, Payne County; L.H. Woodyard, Judge.
William Gaines was convicted of having possession of whisky, and he appeals. Affirmed.
Freeman E. Miller, for plaintiff in error.
The Attorney General, for the State.
The plaintiff in error, hereinafter called defendant, was convicted in the county court of Payne county on a charge of having possession of three pints of whisky, and his punishment fixed at a fine of $50 and confinement in the county jail for thirty days.
The evidence of the state was that the officers searched the place of business of the defendant and found three pints of whisky; that defendant said the whisky was his, and later told the sheriff that he was coming over and plead guilty to the charge; that the defendant was often seen in this place of business and that the place was known as the "Billie Gaines Restaurant." The defendant denied that he owned the place or the liquor or knew anything about it being concealed there.
The defendant first contends that the evidence is insufficient to support the verdict of the jury, but in the light of the record this contention is without merit.
Defendant next contends that the court erred in giving instruction No. 2, wherein the defendant complains that the court instructed the jury, "That the keeping of one quart of any spirituous, vinous, fermented or malt liquors, * * *" whereas the instruction as appears from the case-made reads, "You are further instructed that the keeping in excess of one quart of any spirituous, vinous, fermented or malt liquors. * * *"
The defendant contends in his brief that the court left out the word "excess," but the record does not support that contention. Defendant complains of other errors, but they are all without merit.
For reasons stated the cause is affirmed.
EDWARDS, P.J., and DAVENPORT, J., concur.