
    HARVEY HENDRIX et al. v. STATE.
    No. A-8406.
    Aug. 16, 1932.
    (13 Pac. [2d] 692.)
    Edwards & Robinson and Gus Rinehart, for plaintiffs in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiffs in error, hereinafter called defendants, were convicted in the district court of Oklahoma county of the crime of larceny of domestic fowls — the punishment of the defendant Harvey Hendrix fixed at five years in the state penitentiary; the punishment of Nellie Brooks fixed at one year and a day in the state penitentiary, from which judgment the defendants have appealed.

The testimony in this case is circumstantial. On the 15th day of May, 1931, W. A. Curry, who- lived near Edmond, Okla., missed 19 of his chickens, and reported the same to- the officers. Joe Chambers, a farmer living near Guthrie, on the morning of the 15th of May, 1931, was walking along the road near the city of Gnthrie. His attention was attracted to the side of the road, and upon investigation he found sacks containing chickens; this was reported, and the sheriff of Logan county and one of his deputies went to the place where the chickens were, and secreted themselves about 9 o’clock on the morning of May 15, 1931; the defendant Harvey Hendrix drove up to where the chickens were and went directly to the place, returning toward the car with a sack of chickens in each hand. Nellie Brooks was driving the car, and the testimony tends to show the only connection she had with the transaction was the driving of the car.

The chickens were identified by Curry, the prosecuting witness, as his chickens he missed from his henhouse. The defendant Harvey Hendrix contends that Nellie Brooks had driven him there from her home for Hendrix to get some whisky he claims was hid at the side of the road near where the chickens were found.

Several errors have been assigned by the defendants which they claim are sufficient to justify the court in reversing their case. Upon an examination of the errors assigned, we hold they do not possess sufficient merit to warrant a reversal.

The record has been carefully examined, and the testimony contained therein considered. The testimony in the case is sufficient to sustain the judgment. There being no showing that either of the defendants have ever been guilty of the crime of larceny of domestic fowls prior to this conviction, the court holds that the punishment of Harvey Hendrix is excessive and should be modified from the sentence of five years in the state penitentiary to a. sentence of two years; the testimony against the defendant Nellie Brooks being circumstantial, and it being the contention of the defendant that she knew nothing about the chickens being stolen, and only drove the car out there for the defendant Hendrix, the court holds her sentence is excessive and should be modified from a year and a day in the state penitentiary to six months in the penitentiary.

The judgment as to Harvey Hendrix is modified to two years, and the judgment of Nellie Brooks is modified to six months.

The judgment as modified is affirmed.

EDWARDS and CHAPPELL, JJ., concur.  