State v. Zanger

ARMSTRONG-, P. J. This appeal is 'by the state of Oklahoma upon a question reserved by the county attorney. It appears that an information was filed in the county court of Coal county purporting to charge the defendant in error with violating the ’prohibitory law, the charging part of said information being as follows: “Said Adam Zanger did then and there willfully and unlawfully sell and furnish to one Jesse Combs certain malt liquors, to wit, beer, and a certain imitation of, and a substitute for, malt liquors, to wit, an imitation of, and a substitute for, beer.” A demurrer was filed to this information on behalf of the defendant in error, and was sustained by the trial court on the following grounds: ■ “That said information does not state facts sufficient to constitute a crime against the laws of the state of Oklahoma, * * * that the information is duplicitous charging more than one offense against the defendant.” The court erred in sustaining the' demurrer to the information, because it does state facts sufficient to allege the offense of selling beer. Under a former holding of this court, it does not state facts sufficient to constitute a “furnishing” within the meaning of the prohibitory law. Scott v. State, 6 Okla. Or. 492, 119 Pac. 1023. The allegation relative to furnishing is surplus-age. The latter clause in the charging part of the information does not state facts sufficient to constitute the sale of an imitation or substitute for beer under the holding of this court in *124 the ease of Ex parte Hunnicutt, 7 Okla. Cr. 213, 123 Pac. 179, and for that reason it is not duplicitous; that portion of the information being also surplusage. We do not want to be understood as approving this information as a model form „ of pleading, -but it is sufficient to charge and does charge the illegal sale of intoxicating liquor, to wit, beer. It follows that the judgment of the trial court should be reversed, and the cause remanded for a trial. And it is so ordered. DOYLE and FURMAN, JJ., concur.