The plaintiff in error, hereinafter called defendant, was convicted in the county court of Pottawatomie county for having the illegal possession of whisky and was sentenced to pay a fine of $500 and to serve six months in the county jail.
Certain officers with a search warrant searched the residence of defendant and found two and one-half gallons of whisky and a number of empty bottles. Only one witness testified for the state. Defendant did not testify and offered no evidence. The jury did not agree on the punishment and same was assessed by the court.
The affidavit to procure the search warrant and the search warrant are challenged. A close question is presented, but under the rule that the burden is on defendant to show a prejudicial error, the proceeding will be upheld. It is also insisted the court erred in permitting the sheriff to summon talesmen to serve on the jury. The search was made by his deputy, who was the sole witness. This objection was not made until after the jury was impaneled and then only by an oral objection, although it appears it was known to counsel before the jury were examined. Some objection is made to the instructions of the court. Considered and construed together, there is no error in the instructions requiring a reversal. Upon the whole case the punishment assessed is excessive and is modified by reducing the same to a fine of $200 and confinement in the county jail for a term of 60 days.
As modified, the case is affirmed. *Page 220