Opinion
No. A-6487.
Opinion Filed May 25, 1929.
Appeal and Error — Sufficiency of Evidence — Denial of New Trial. This court will not grant a new trial on the ground of insufficient evidence to sustain the verdict of the jury, where the evidence is conflicting, and where there is sufficient evidence in the record to support the verdict, if the jury believed the testimony offered by the state.
Appeal from County Court, Oklahoma County; C.C. Christison, Judge.
F.M. Miller and Mrs. F.M. Miller were convicted for possession of a still, and they appeal. Affirmed as to defendant, F.M. Miller, and modified as to defendant, Mrs. F.M. Miller.
Sam S. Gill, for plaintiffs in error.
J.K. Wright, Co. Atty., and L.W. Harrod, Asst. Co. Atty., for the State.
The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Oklahoma county on the charge of having possession of a still, and each of the defendants was sentenced to pay a fine of $250 and each to be imprisoned in the county jail for a period of 4 months. Motion for new trial was filed, overruled, and exceptions saved, and the case appealed to this court.
The defendants argue two questions in their brief. First, "the evidence is insufficient to support the verdict." This court has repeatedly held that, where there is a conflict in the testimony, and where there is sufficient evidence in the record to support the verdict of the jury, this court will not reverse the case.
In the case of Choate v. State, 37 Okla. Cr. 314, 258 P. 360, par. 2 of the syllabus, this court said:
"Where there is competent evidence which reasonably sustains the verdict and judgment, a conviction will not be reversed, although the evidence may be conflicting or different inferences may be drawn from it."
The defendants next complain that the judgment and sentence are excessive. As to the defendant, Mrs. F.M. Miller, we are of the opinion that the punishment should be reduced to a fine of $50 and to imprisonment in the county jail for 30 days; but as to the defendant, F.M. Miller, the punishment does not appear to be excessive.
The judgment is therefore affirmed as to defendant, F.M. Miller, and the judgment is modified as to Mrs. F.M. Miller, and her punishment fixed at a fine of $50 and imprisonment in the Oklahoma county jail for a period of 30 days.
EDWARDS, P.J., and DAVENPORT, J., concur.