The information in this case charges that the defendants, W.J. Beaver, Walter Stein, and John Martin, on the 3rd day of March, 1923, did have in their possession intoxicating liquors, to wit, whisky, with the unlawful intent to sell the same. A trial was had thereunder, and the defendants were found guilty as charged in the information, and the punishment of each fixed at a fine of $150 and confinement in the county jail for 30 days. From the judgment rendered on the verdict, they appeal and assign as error that the verdict is not sustained by sufficient evidence, and the court erred in admitting incompetent evidence.
The material and undisputed facts are that M.D. Wolfe, deputy sheriff, in company with three other officers, *Page 97 in executing a search warrant against the defendant Beaver's rooming house, in the town of Picher, found about six gallons of corn whisky contained in jugs and in fifteen half-pint bottles in a room near those occupied by the defendants Stein and Martin; that the defendants Stein and Martin were often seen going to and from the rooming house and left there just before the officers appeared. It appears that the defendant Beaver owned the rooming house, and the other two defendants were the only permanent roomers. Each of the four witnesses for the state testified that the old man Beaver had never been accused of violating the prohibitory liquor law. When the state rested, each of the defendants moved for a directed verdict in the form of a demurrer to the evidence, which was overruled and exceptions allowed.
The defendant Beaver, as a witness in his own behalf, testified his age was 71 years; that he owned the rooming house and was present when the officers searched the place and found the liquor in question in an unoccupied room; that he was in the room the day before and did not notice any liquor in there; that he did not own the liquor and did not know that it was there; that the defendant Stein had been rooming with him since his wife died; that the defendant Martin had been staying there a month or two; that both left the house a short time before the officers arrived; that he had never been arrested before in his life.
The defendants Stein and Martin did not testify.
It is urged that the court erred in refusing to advise the jury that the evidence was not sufficient to warrant a conviction, in that the evidence offered was insufficient to show possession of the liquor in question by the defendants. Stein and Martin.
It is a rule approved by this court that where there is any evidence to support a conviction, or where the evidence is conflicting, this court will not review the record for the *Page 98 purpose of ascertaining or determining the weight or sufficiency of the evidence, and ordinarily the verdict approved by the trial court will be allowed to stand.
We have carefully examined and fully considered all the testimony, and we are of opinion that the evidence is not sufficient to sustain the verdict as against the defendant W.J. Beaver. The witnesses for the state testified that he was old and feeble and had the reputation of being a law-abiding citizen.
As to the other two defendants, we think that on the undisputed facts and circumstances in evidence the jury was warranted in reaching the verdict that it did.
The judgment of conviction as to the defendant W.J. Beaver is reversed. The judgment of conviction against the defendants Walter Stein and John Martin is affirmed.
BESSEY, P.J., and EDWARDS, J., concur.