Underwood v. State ( 1937 )

PER CURIAM.

Clara Underwood, the plaintiff in error, hereinafter designated as the defendant, was by information charged with having possession on the 16th day of June, 1936, of intoxicating liquor; was tried, convicted, and sentenced to be imprisoned in the county jail for ninety days, and to- pay a fine of $200. From which judgment and sentence she appeals.

The proof in this case shows that the officers went to the home of the defendant and found in one of the rooms of her house one or two parties, one of whom stated he came down to get a bottle oí beer. Near to tbe two-room bouse tbe defendant occupied was located wbat was called a trailer room, in that room tbe officers found forty-four pints and eight or ten gallons in tbe making of beer, commonly known as bome-brew. In the room with tbe defendant was a man by tbe name of Wade.

Tbe defendant denies tbe beer belonged to her andi stated she bad tbe room in which tbe beer was found rented to John Tipton. Tbe testimony shows there was an old bedstead in tbe room but there was no mattress on tbe bedstead. John Tipton was not called to< testify be bad tbe room rented from tbe defendant and was occupying it at tbe time tbe beer was found.

Taylor Eogers, a chemist in tbe State Health Department, testified be made a chemical analysis of a bottle of tbe beer brought to him by tbe officers, and found it contained 5 per cent, alcohol by volume, or 4 per cent, by weight at sixty degrees.

Tbe foregoing is all of tbe testimony necessary to be set forth in this opinion.

Tbe evidence is sufficient to sustain a conviction. Tbe record in this case does not show any one around tbe place-was intoxicated but was only drinking a bottle of beer at tbe time tbe officers arrived. Considering all of the testimony and the circumstances surrounding the buildings, we believe tbe punishment imposed is excessive, and should be modified from ninety days in jail to thirty days' in jail, and from a fine of $200' to a fine of $50, and as modified tbe judgment of the trial court is affirmed.