
    STATE v. ONE PACKARD AUTOMOBILE.
    No. 8644
    Opinion Filed April 9, 1918.
    (172 Pac. 66.)
    (Syllabus.)
    Intoxicating Liquors — Seizure and Forfeiture of Automobile — Statute — “Appurtenance.”
    An automobile used April 27, 1916, in the unlawful conveyance of intoxicating liquor in the presence of an officer having power to serve criminal process, was not subject to seizure by such official and forfeiture to the state under the provision of section 3617, Rev. Laws 1910, and is not .an “appurtenance” within the meaning of that section, which provided: “When a violation of any provision of this chapter (chapter 39, Intoxicating Liquors) shall occur in the presence of any sheriff, constable, marshal, or other' officer having power to serve criminal process, it shall be the duty of such officer, without warrant, to arrest the offender and seize the liquor, bars, furniture, fixtures, vessels and appurtenances thereunto belonging so unlawfully used.”
    Brett, J., dissenting.
    Error from County Court, Craig County; E. M. Probasco, Judge.
    Proceeding by the State against one Packard automobile; William Reed, claimant. Prom a judgment directing its delivery to claimant, the State brings error.
    Affirmed.
    Willard I-I. Voyles, for the State.
   MILET, J.

On April 27, 1916, L. P. Smart, sheriff of Craig county, Okla., arrested without a warrant J. Sha'w and. Judge Hatfield, who were unlawfully conveying certain intoxicating liquors in his presence, and seized the liquors and the automobile in which the same were being conveyed. Return having been made to the county court of Craig county, one William Reed appeared at tile time fixed for the hearing, claimed to be the owner of the automobile, and asked that same be ordered delivered to him, alleging that the same was not subject to seizure and forfeiture. The contention of the claimant was sustained, a-ni judgment rendered directing this automobile to be delivered to him, from which the state has appealed.

While the question was irregularly raised in the court below, yet since the automobile was not subject to seizure and forfeiture upon authority of One Cadillac Automobile v. State of Oklahoma, 68 Okla. 116, 172 Pac. 62, this day decided, the judgment complained of should be affirmed.

Ail the Justices concur, except BRETT, J., who dissents.  