Downey v. State , 51 Okla. Crim. 94 ( 1931 )

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of selling whisky, and was sentenced to pay a fine of $450 and to serve five months in the county jail.

The testimony for the state is, in substance, that at the time charged an officer went to the place of business of defendant and informed him that he wished to purchase a pint of whisky, and, after some conversation, defendant directed him to drive around the corner of the block as it was too light at his place of business, and that the officer drove around, and defendant handed him a pint of whisky wrapped up as a package; that he gave defendant a $5 bill, the number of which had been taken; that two other officers who were watching them drove up, and defendant struck the whisky from the hands of the officer to whom he had delivered it; that defendant had on his person the particular bill given him by the officer. Defendant denies he made a sale, but testified that at the solicitation of the officer he acted as an agent to find whisky for him, but that he did not sell the officer any whisky nor receive from him any money.

There is a direct conflict in the testimony but the evidence for the state is sufficient to sustain the judgment. No reason for a reversal appears, but, upon a consideration of the entire record, we are of the opinion that the punishment assessed is excessive, and the same is reduced to a fine of $250 and 60 days in the county jail.

As modified, the case is affirmed.