Sillix v. State

Plaintiff in error was in the court below convicted of the offense of maintaining a place where intoxicating liquors were received and kept for the purpose of selling the same. On the 3d day of September the court rendered judgment and sentenced the defendant to be confined in the county jail for a period of 30 days and to pay a fine of $300 and the costs.

It is only necessary to a determination of the case to pass upon one question. It appears from the record that the court did not instruct the jury as to the punishment prescribed by the statute for the offense, and did not instruct the jury that in the event they found a verdict of guilty they should assess and declare the punishment in their verdict. The Attorney General's brief concedes: "That in this regard the defendant was prejudiced in that the court rendered judgment for a greater punishment than the minimum fixed by law. We, therefore, suggest that, under the power of this court to modify judgments, the judgment be modified so as to provide that the defendant be imprisoned in the county jail for a period of 30 days, and that he pay a fine of $50" — citing McSpadden v. State, 8 Okla. Crim. 489, 129 P. 72.

Under the law the punishment for the offense charged in the information is both fine and imprisonment. See sections 3610, 3634, Rev. Laws.

Finding no other error in the record, that part of the judgment imposing the fine will be modified to read, "and to pay a fine of $50 and the costs."

The judgment as modified is hereby affirmed.

ARMSTRONG, P.J., and FURMAN, J., concur.