The plaintiffs in error were convicted in the county court of Payne county on a charge of gambling and were each sentenced to pay a fine of $25 and to serve ten days in the county jail.
The evidence is brief, and in substance is that the plaintiffs in error were shooting craps on the floor of a shining parlor, and that certain officers came and the dice were thrown under a seat and some money on the floor was covered by the foot of one of the parties, but was discovered and was taken in charge by the officers. The proof of the actual playing of the game is largely circumstantial, although a witness who was in business next door, which was in the room occupied by the shining parlor, but separated by a beaver board, gave direct testimony. The plaintiff in error Crosby was outside the building, and at the approach of the officers slapped the closed door of the building, apparently as a warning to those inside.
It is argued that the going to the place by the officers and entering the building was an illegal search. To this we cannot assent. The offense was committed in a public place, open to the public, and the mere going into the building was not such a search as required a search warrant. *Page 313
It is also argued that the evidence is insufficient. While, as stated, the evidence is circumstantial, it is such that the jury might logically and reasonably conclude that the plaintiffs in error were guilty as charged. Under the circumstances shown, however, we think the punishment is excessive, and the judgment is modified to omit entirely the jail sentence imposed, and, as modified, the judgment is affirmed.
DOYLE, P.J., and DAVENPORT, J., concur.