Knopp v. State , 49 Okla. Crim. 416 ( 1931 )

CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Canadian county of tbe crime of unlawful possession of a still worm, and bis punishment fixed by tbe jury at a fine of $50 and imprisonment in tbe county jail for a period of 30 days.

Tbe evidence of tbe state was that tbe officers bad a search warrant for defendant’s premises, and on searching tbe same found a barrel of mash and another barrel partly filled with mash in a bole in tbe ground right beside tbe dining room at tbe south side of tbe bouse; that this mash was tbe kind used to make whisky; that they also found a still worm in an outhouse about 50 feet from tbe defendant’s residence; that this worm was fastened in a large ice cream packer, with tbe worm inside tbe pipe, and it was covered up with rags and sacks.

Tbe defendant took tbe witness stand and denied knowing that tbe worm was on bis place, and bis son-in-law, one C. E. Jones, testified that tbe still worm belonged to him and that be bad taken it upon tbe premises without tbe knowledge of defendant.

Defendant argues first that tbe evidence of tbe state was not sufficient to support tbe verdict of tbe jury.

Tbe credibility of tbe witnesses and tbe weight to be given their testimony was for tbe jury. They were not bound to believe tbe evidence of tbe defendant nor of bis son-in-law. Tbe evidence of tbe state made out a prima facie case and tbe jury were justified, if they believed this evidence, in finding tbe defendant guilty.

Tbe defendant next contends that tbe court erred in pronouncing judgment on tbe verdict of tbe jury, which reads as follows:

“In tbe County Court, in and for Canadian County, State of Oklahoma.

“State of Oklahoma, Plaintiff, v. C. F. Knopp, Defendant. Case No. 6917.

“We, the jury, impaneled and sworn to try the issues in the above entitled cause, do, upon our oaths, find the defendant, C. F. Knopp, guilty of the unlawful possession of a still worm as charged in the information herein, and affix his punishment at a term of 30 days in the county jail, and by a fine of $50. We, the jury, recommend that the jail sentence of 30 days be suspended by the court.

“H. E. Bonebrake, Foreman.”

The trial court not only was not bound to follow the recommendations of the jury, but he had no legal right to do so, since the jury itself had assessed the smallest punishment possible under the law. If the jury had assessed a punishment greater than the minimum, the recommendation of the jury might have appealed to the trial judge, although he was not under any legal obligation to follow the same. While the verdict is informal, it is not illegal and was sufficient to authorize the court to pronounce judgment thereon.

The errors of law complained of being without substantial merit, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.