f. criminal oTpeSty distriSfattoi-ney' I. It is claimed by appellant that an arrangement was made between the attorney of defendant and the district attorney, which was binding and obligat0I7 uPon the -State and the court, that the fine should not exceed fifty dollars. This position is wholly without support in the record. The district attorney, even if he should undertake to do so, could make no arrangement binding upon the court, as to the amount of fine to be imposed in a given case. And the affi*151davit filed by defendant shows clearly that the district attorney in this case did not undertake to do any such thing. He told defendant’s attorney that “ of course he had no control of that matter.” What'followed was’a mere'expression of an opinion; an opinion upon which defendant had no right to rely, and .by which the action of the court cannot be governed.
2.-: oír- • initigatioul II. It is further urged that the defendant had. the right, before sentence, to' be heard either by himself or through counsel, in the way of presenting to the court circumstances in mitigation. This maybe admitted. But this is a privilege granted the defendant which he may waive. The record does not show that the defendant offered to introduce anything by* way of mitigation, or that he was denied the privilege of doing so. It is claimed the sentence was pronounced in the absence of defendatit’s attorney, and hence no opportunity was afforded to present mitigating circumstances. The record does not show defendant’s attorney was absent at the time of sentence.' The motion for a new trial states he was absent but the'motion-is not sworn to, and it does not establish ■ any fact.- Besides, -matters in mitigation'might have been shown by affidavit at any time after the plea was filed. The presence of defendant’s attorney-was not necessary for that purpose.
III. It is further urged that the fine is- excessive and unauthorized.. Reference is made to' section 1114 of the Code, punishing the sale of intoxicating liquors within one hundred and sixty rods of the inclosure where any county or district agricultural society fair is being held, ■ by fine not more than fifty dollars.' It is claimed’ the defendant comes under this provision. But this provides- the punishment for selling ’intoxicating liquors. The -defendant was indicted for and he pleaded guilty' of the crime of keeping a -nuisance. The punishment for this offense is a-fine not exceeding one 'thousand dollars. Code, sections 1543 and 4092. •
We discover no error in the record.
Affirmed.