Teague v. State , 47 Okla. Crim. 1 ( 1930 )

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Dewey county of transporting liquor as a second violation of the prohibitory liquor law (Comp. St. 1921, § 6982 et seq., as amended), and was sentenced to pay a fine of $50, and to serve five years in the state penitentiary.

The evidence both for the state and the defendant is brief; that for the state discloses that prior to the offense charged, defendant had been charged in the county court of Ellis county with manufacturing intoxicating liquor, had pleaded guilty to such charge, and had been sentenced to a term of sixty days in the county jail and to pay a fine of $50, that the judgment was final and had been carried into execution. It also appears that at the time charged, in the instant case, a deputy sheriff from the town of Leedy, at about one a.m., observed two cars drive to a point near the gin at Leedy and heard some loud and offensive language in the nature of a quarrel or colloquy calculated to disturb the peace of the neighborhood. That he went to the place and found two men and two women standing near one of the cars, and found defendant and one Dalton in the other car. He states it as his judgment that the offensive language was spoken by defendant, and that he sought to arrest him and got on the car. That either Dalton or defendant started the car and drove it away from the scene, and that one of them kicked a bottle and a jar out of the front of the car. That Dalton threw a bottle of whisky from the car, and defendant attempted to pour out a pint of whisky which was in his pocket but that he prevented that and seized the whisky. Defendant testified that he and Dalton had been to a dance and had arranged to purchase some whisky to be delivered to him at town. That he drove into town and that the party, whose name he did not know, came to the car with a half-gallon of whisky. That they put it in the bottles, but had not transported it when the deputy sheriff came upon the scene. He offered evidence of some other members of the party tending to corroborate his testimony. He admitted he had been convicted of a previous violation of the liquor law and also of grand larceny and served a term at the Granite Penitentiary. There is sufficient evidence to sustain the verdict of the jury, but, from the consideration of the entire record, we are convinced that the punishment assessed is excessive and the judgment should be modified by reducing the imprisonment from five years in the penitentiary to two years in the penitentiary.

As modified, the case is affirmed.

CHAPPELL, J., concurs.