This appeal is brought to reverse a conviction in the county court of Muskogee county, wherein the plaintiff in error was found guilty of the illegal possession of intoxicating liquor, with his punishment assessed at confinement in the county jail for a period of 90 days and to pay a fine of $150. *Page 218
The evidence shows that plaintiff in error, defendant in the trial court, was apprehended by peace officers in possession of 3 gallon jugs of corn whisky on the streets of Muskogee, before daybreak on the morning of August 23, 1922. The evidence indicates that the defendant, when apprehended, was in the act of violating the prohibitory law in two ways. First, it appears that he had possession of this whisky, with intent to violate the law, and, second, he was engaged in the act of illegal transportation. In this instance the latter included the former, and the county attorney had a right to elect to try him for illegal possession, as was done.
The defendant, when arrested, claimed he was conveying this whisky for another person, constituting further proof of his intent to violate the law — facts constituting no excuse or defense to the offense charged.
Defendant complains of an instruction given by the court relating to prima facie evidence. Portions of the instruction complained of might, under other circumstances, have been misleading, but under the facts in evidence the defect, if any there was, was harmless. The verdict was not based on prima facie evidence, but on positive proof conclusively establishing guilt.
The judgment of the trial court is affirmed.
MATSON, P.J., and DOYLE, J., concur.