Opinion
No. A-7969.
October 30, 1931.
(Syllabus.)
Appeal and Error — Modification of Judgment Where Jury Assessed Minimum Punishment Pursuant to Erroneous Instruction. Where the trial court instructs that the minimum punishment for an offense is greater than that fixed by law, and the jury assesses the minimum punishment stated in the instructions, this court on appeal may reverse and order a new trial or may modify the judgment by reducing it to the minimum punishment fixed by the law.
Appeal from District Court, Jefferson County; M. W. Pugh, Judge.
Jimmie Huffman was convicted of selling whisky to a minor, and he appeals. Modified, and, as modified, affirmed.
Robert N. Dunn, for plaintiff in error.
J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
The plaintiff in error, hereinafter called defendant, was convicted in the district court of Jefferson county of selling whisky to a minor and his punishment fixed at one year in the state penitentiary.
The record discloses that at the time of the offense charged defendant sold a pint of whisky to one Bill Dodd who was under the age of twenty-one years. The evidence sustains the judgment. The court in his charge instructed the jury that the minimum punishment was one year in the state penitentiary. The court evidently relied on section 7005, Comp. Stat. 1921, which was held unconstitutional in the cases of Nowakowski v. State, 6 Okla. Cr. 124, 116 P. 351, and Nowlin v. State, 7 Okla. Cr. 713, 122 P. 1133. The minimum punishment, a fine of $50 and imprisonment in the county jail for not less than 30 days, is fixed by sections 6996-7, Comp. Stat. 1921, being a part of chapter 26, Session Laws 1913. The court having erred in his instructions as to punishment, and the jury having fixed the minimum under the instructions, the sole question is, Shall this court reverse for a new trial or modify the judgment by reducing the punishment to the minimum fixed by law?
Upon a consideration of the entire record, we are of the opinion that justice will be better served by a modification of the judgment. It is therefore reduced to the minimum of a fine of $50 and 30 days in the county jail.
As modified, the case is affirmed.
DAVENPORT, P. J., and CHAPPELL, J., concur.