Smithers v. State , 36 Okla. Crim. 135 ( 1927 )

DOYLE, P. J.

The information in this case jointly-charged appellant Carey Smithers and Gus Key with having in their possession one gallon of whisky with the unlawful intent to sell the same. Upon their joint trial, the jury failed to agree as to the defendant Key, but returned a verdict finding appellant guilty, and fixing his punishment at a fine of $100 and 60 days’ imprisonment in the county jail.

The evidence shows that officers visited the Key Drug Store in the City of Ardmore, in executing a search warrant ; that they found defendant Gus Key and his. brother, Emmitt Key, in the front part of the store, and appellant in the rear; that defendant Key spoke to appellant, and he dropped two jars containing whisky into a tub containing creosote. Appellant, a young man, was employed as clerk in the Key Drug Store. Several errors have been assigned for a reversal of the judgment, and it is insisted that the evidence does not support the conviction.

We have carefully examined the record, and nothing that would in any way tend to prejudice the substantial right of appellant is presented for our consideration. However, we are inclined to think that, in view of the fact that the jury failed to convict the proprietor, and in consideration of the youth of appellant, the penalty imposed is excessive, and that substantial justice requires a modification of the judgment.

The judgment appealed from will be modified, by reducing the sentence to a fine of $50 and 30 days’ imprisonment in the county jail; as so modified, the judgment is affirmed.

EDWARDS and DAVENPORT, JJ., concur.