295 P. 228 | Okla. Crim. App. | 1931
Plaintiff in error, hereinafter called defendant, was convicted in the county court of Canadian *417 county of the crime of unlawful possession of a still worm, and his punishment fixed by the jury at a fine of $50 and imprisonment in the county jail for a period of 30 days.
The evidence of the state was that the officers had a search warrant for defendant's premises, and on searching the same found a barrel of mash and another barrel partly filled with mash in a hole in the ground right beside the dining room at the south side of the house; that this mash was the kind used to make whisky; that they also found a still worm in an outhouse about 50 feet from the defendant's residence; that this worm was fastened in a large ice cream packer, with the worm inside the pipe, and it was covered up with rags and sacks.
The defendant took the witness stand and denied knowing that the worm was on his place, and his son-in-law, one C.E. Jones, testified that the still worm belonged to him and that he had taken it upon the premises without the knowledge of defendant.
Defendant argues first that the evidence of the state was not sufficient to support the verdict of the jury.
The credibility of the witnesses and the weight to be given their testimony was for the jury. They were not bound to believe the evidence of the defendant nor of his son-in-law. The evidence of the state made out a prima facie case and the jury were justified, if they believed this evidence, in finding the defendant guilty.
The defendant next contends that the court erred in pronouncing judgment on the verdict of the jury, which reads as follows:
"In the County Court, in and for Canadian County, State of Oklahoma. *418
"State of Oklahoma, Plaintiff, v. C.F. Knopp, Defendant. Case No. 6917.
"We, the jury, impaneled and sworn to try the issues in the above entitled cause, do, upon our oaths, find the defendant, C.F. Knopp, guilty of the unlawful possession of a still worm as charged in the information herein, and affix his punishment at a term of 30 days in the county jail, and by a fine of $50. We, the jury, recommend that the jail sentence of 30 days be suspended by the court.
"H.E. Bonebrake, Foreman."
The trial court not only was not bound to follow the recommendations of the jury, but he had no legal right to do so, since the jury itself had assessed the smallest punishment possible under the law. If the jury had assessed a punishment greater than the minimum, the recommendation of the jury might have appealed to the trial judge, although he was not under any legal obligation to follow the same. While the verdict is informal, it is not illegal and was sufficient to authorize the court to pronounce judgment thereon.
The errors of law complained of being without substantial merit, the cause is affirmed.
EDWARDS, P.J., and DAVENPORT, J., concur.
