Counsel for plaintiff in error have filed a petition for rehearing, with the further request that, if the same be overruled, the court again review the evidence and modify the judgment, because it is apparent from the record that the verdict assessing the maximum penalty was probably the result of passion and prejudice.
The petition for rehearing calls attention to one ground for reversal not supported by argument and authority in the brief filed in behalf of plaintiff in error, and not considered by the court in the original opinion, although assigned in the petition in error as ground for reversal. This assignment *Page 124 of error relates to the failure of the trial judge to define the term "prima facie" evidence. No request was made by counsel for plaintiff in error that the court define this term. In the absence of such request, the charge as a whole fairly covering the law of the case, we do not think this, of itself, a sufficient reason for reversing the judgment.
The plaintiff in error was a first offender against the laws of this state. The maximum penalty was imposed against him. The circumstances under which the offense was committed were not such as to aggravate its character or to demand the maximum penalty against a first offender. We think it apparent that a certain amount of passion and prejudice must have occasioned the verdict. For that reason the court has reached the conclusion that the judgment should be modified to provide a fine of $250 and imprisonment in the county jail for a period of 30 days.
It is therefore considered, ordered, and adjudged that the judgment of the trial court, assessing a fine against the plaintiff in error in the sum of $500, and that he be imprisoned in the county jail for a period of 6 months, be, and the same is, hereby modified, to provide a fine of $250 and imprisonment in the county jail for a period of 30 days.
As modified, the judgment is affirmed.