Smith v. State

EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Blaine county on a charge of destroying evidence, and was sentenced to pay a fine of $150 and to serve 60 days in the county jail.

Defendant was prosecuted under section 1646, Comp. Stat. 1921, which defines a misdemeanor for any person to willfully destroy any paper, instrument, matter, or thing which he knows is about to be produced in evidence upon any trial, proceeding, inquiry, or investigation authorized by law, with the intent to prevent the same from being produced. The record discloses that at the time charged the sheriff, with two other persons, with a search warrant, went to the residence of defendant, and procured a bottle of whisky, and then arrested the defendant, and, while on the way with him to the county seat, defendant seized the bottle in the overcoat pocket of the sheriff and threw it into the Canadian river. The defendant admits that he took the bottle of whisky from the pocket of the sheriff and threw it into the river, but excuses his act by saying that he was angry because the sheriff would not permit him to make some arrangements for the care of his family while he was under arrest.

The record is brief, and there is little conflict in the ^testimony. The appeal was lodged in this court in June, 1929. No briefs in support have been filed. We have examined the record, and find no material error. Under all the circumstances, however, we are of the opinion that the punishment assessed is more severe than the facts warrant, and that the judgment should be modified by reducing it to a term of 30 days in the county jail and a! fine

As modified, the case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.