
    JUNE TYLER et al. v. STATE.
    No. A-6232.
    Opinion Filed April 16, 1928.
    (266 Pac. 516.)
    
      Chapman & Chapman, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiffs in error June Tyler and Sain Tyler were convicted on an information which charged that they committed an assault and battery upon the person of one H. A. Server, by means and use of a deadly weapon with intent to do bodily harm. The jury fixed the punishment of June Tyler at imprisonment in the penitentiary for a term of two years and the punishment of Sam Tyler at imprisonment in the penitentiary for a term of one year. Motion for new trial was duly filed and overruled and judgment rendered in accordance with the verdict. From the judgment they appeal.

The first error assigned is that the verdict is contrary to law and is not supported by' the evidence.

H. A. Server testified that he was sitting in a car waiting for.his wife to come out of church in Earlsboro and Sam Tyler walked up to him with two half pints of whisky in his pockets and a big rock in his hand, and said, “I hear you found my mash and told it,” and he answered, “Yes; I told it;” and Sam grabbed him with one hand and hit him with the rock, and said, “I am going to murder you;” witness tried to get his knife out and it fell and Sam grabbed the knife; that witness started away and went about half a block and spoke to' Mr. Ingram; that Sam followed him, and witness stopped, picked up a rock, and threw it at Sam, thei* Sam threw a rock at him, and they started to fight, then June Tyler ran up with a big long knife in his hand and stabbed witness in the back five or six times.

Joe Ingram, a disinterested white witness and merchant at Earlsboro, testified that he noticed Henry Server sitting in the car and Sam Tyler walked up to the car, but he could not hear what was said; that Sam Tyler commenced to beat Server with his fist or something and they scuffled a minute or two, then Sam Tyler got back out of the car and picked up a rock and acted like he was going to hit Server with it; witness told him not to hit him; Server then got out of the car on the opposite side from where Sam was; witness then started his car, and Server called to him, and he stopped his car7 Server said, “I want some protection; I want the law;” Sam Tyler was following Server with a knife in his hand; .Server picked up a rock and threw it at Sam Tyler, then they started to fight and went down with Sain underneath; about that time June Tyler came up with a knife in his hand, and cut Server, striking him in the back, and then witness, with Arthur Harris and others, separated them.

As a witness in his own behalf, Sam Tyler testified as follows;

I walked up to the car, and said: “Server, why do you go and tell people I got mash around here? You know I ain’t got nothing like that aroundj” and he say, “Yes; I seen it;” and, “If you don’t like it, what are you going to do about it?” I said, “Well, that is all right;” and he started out of the car and going into his pocket; I grabbed him and held him there a few minutes and turned him loose, and he got out of the car with his knife open, so I just backed off from the car, and he came around the car with his knife in his hand and started up town "raising sand.” I started up town with my hands in my pocket, and he says, "Don’t you come up here.” When I got up 8 or 10' feet from him, he threw a rock at me and struck me on the arm, and he lunged with this knife; I grabbed the hand in which his knife was, and he fell on top of me, and I twisted the knife out of his hand; I didn’t know that he was cut until the law came there; I dsjn’t see how I could have cut him; I had the knife; I done got his knife and I gave it to the jailer.”

As a witness in his own behalf, June Tyler testified as follows:

‘T was sitting across the street and saw Server throw a rock; the people were running up, so I ran across the street to see what was the trouble, and when I got up there Server was on top; about that time they got up; I got as close as here to the table from them; I didn’t have no knife and I didn’t cut Server.”

It appears that the complaining witness and the defendants are colored persons and counsel for the defendants contend that the proof merely shows a row or difficulty among some colored persons, brought about by the acts of the complaining witness.

The testimony of Ingram, a disinterested white witness, a merchant at Earlsboro, if believed by the jury, is sufficient to warrant the conviction. The jury has said by its verdict that it believed this witness for the state, so it would be improper for this court to pass upon the weight of the evidence and to declare in effect that the testimony supporting the verdict was untrue.

The Attorney General in his brief states:

"Counsel for the defendants suggest that, if this court does not think these judgments should be reversed, then the sentence of June Tyler should be modified by making his sentence one year, the same as that given Sam Tyler”

—and concludes that the state has no serious objection to said modification.

Considering all the circumstances in the case, this court has come to the conclusion that the sentence of the defendant June Tyler is excessive, and should be modified to imprisonment in the penitentiary for a term of one year.

The judgment as to June Tyler, as so modified, is affirmed, and the judgment as to 'Sam Tyler is affirmed.

EDWARDS and DAVENPORT, JJ., concur.  