The defendant, Larry Barnett, was charged by an information filed in the county court of Kay county with the crime of unlawful possession of seven pints of whiskey; was tried; found guilty by verdict of the jury, which left the punishment to be assessed by the court. The court thereupon sentenced the accused to serve the maximum sentence of six months imprisonment in the county jail and to pay a fine of $500 and costs; and he has appealed.
The facts in this case are almost identical with those discussed by this court in the case against the same defendant decided on July 23, 1952. Barnett v. State, 95 Okla. Cr. 394,247 P.2d 299, 300. *Page 152
The raid in the instant case occurred on July 6, 1950, while the raid in the case hereinabove referred to occurred a week later on July 13, 1950. The same officers made the raid in each instance and Officer Willis testified at the trial in each case. In each case the defendant broke the whiskey bottles before the officers could enter the house, and the officers secured the tops of bottles with the government seal upon them, parts of pint whiskey bottles with the labels on them. The broken bottles were all wet and had the odor of whiskey. The circumstantial evidence was sufficient to sustain a conviction for the unlawful possession of whiskey.
The defendant presents the other issues the same as were presented in Barnett v. State, supra, in which the contentions of the accused were sustained on appeal.
The state over the objection of counsel for defendant was permitted to introduce in evidence a federal retail liquor dealer's license that was issued to the defendant, which showed payment of the tax and issuance of the license on August 29, 1950, which was several weeks after the date of the raid. Although the license was issued on August 29, 1950, it covered a period of time dating back to July 1, 1950, however the tax had not been paid and the certificate had not been issued at the time of the raid, and we adhere to the ruling we handed down in Barnett v. State, supra on this matter wherein we held:
"Evidence of the possession of a federal retail liquor dealer's license should never be permitted unless it is first shown that the license was in the name of the accused and covered the period of time during which the intoxicating liquor was allegedly held in possession of the accused."
Complaint is made of the same instructions in this case as were given in the former case which we discussed at length in that opinion. For our conclusion as to the law governing those instructions, reference is made to that opinion. Barnett v. State, supra. We therein held the instruction pertaining to the federal retail liquor dealer's license and the instruction suggesting the jury find the defendant guilty and leave the punishment to the court were erroneous. The verdict herein was signed by only five members of the jury and one juror stated that he did not believe defendant was guilty when the jury was polled. If the erroneous instructions had not been given and the federal retail liquor dealer's license admitted in evidence, the jury might not have convicted the accused. We are firmly convinced of his guilt because he is apparently an old offender, but he is entitled to be tried in a lawful manner.
It is regrettable that the errors of law have occurred on the trial in the admission of evidence and the giving of instructions which have amounted to reversible error. However, in the retrial of this case the errors will not be duplicated and the defendant no doubt will receive the justice to which he is entitled.
The judgment and sentence of the county court of Kay county is reversed and the case is remanded for a new trial.
BRETT, P.J., and POWELL, J., concur.
On Petition for Rehearing.