
    THEO. TORGESON v. STATE.
    No. A-6845.
    Opinion Filed Oct. 19, 1929.
    (281 Pac. 812.)
    Sigler & Jackson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State. '
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the county court of Cleveland county of the crime of driving a Ford delivery automobile upon the public highway, on the hard-surfaced road north of the town of Moore, at a greater rate of speed than 35 miles an hour, and was sentenced to pay a fine of $25 and be imprisoned in the county jail for ten days. Motion for new trial was filed and overruled, and defendant has appealed to this court.

The testimony in this case is conflicting; the officer who saw the defendant driving the truck says he was driving at a rate of speed greater than 35 miles an hour, probably 45 miles an hour. The defendant testified he was coming to Oklahoma City about 7 o’clock in the morning; he had spent the night at Norman; there was very little traffic on the highway at the time; he was driving about 28 or 30 miles per hour. This is in substance the testimony. No one was injured, and there seem to have been no cars on the road at the time the defendant is charged with exceeding the speed limit. The only complaint is the complaint made by the officer who was a highway patrolman, and the.garage man at Moore, Okla.

The defendant has assigned three errors committed by the trial court; the second being that the punishment is excessive and unwarranted; and, third, that the court erred in overruling defendant’s motion for a new trial. This court has repeatedly held that, where there was a conflict in the testimony, it would not disturb the verdict of the jury, but where, from the record, it appears that the judgment is excessive, the court under the authority granted it by the statute would modify the judgment. The jury found the defendant guilty of exceeding the speed limit, and imposed a fine of $25 and ten days in jail. Under the record in this case we believe the judgment should be modified from a fine of $25 and ten days’ imprisonment in jail to a fine of $25.

The judgment as modified is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.  