
    JIM TENNISON v. STATE.
    No. A-5197.
    Opinion Filed Oct. 24, 1925.
    Rehearing Denied Nov. 14, 1925.
    (240 Pac. 323.)
    
      E. E. Ammons, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The plaintiff in error, Jim Tennison, was tried and convicted on an information charging that in McIntosh county, December 25, 1922, he did shoot one Sidney Warren with a pistol, with the felonious intent then and there to kill the said Sidney Warren, and in accordance with the verdict of the jury he was, December 7, 1923, sentenced to be confined in the state penitentiary at Mc-Alester for a term of nine months.

The only errors assigned are that the evidence is insufficient to sustain the verdict, and that the court erred in not granting a new trial.

There is very little conflict in the evidence. It appears that plaintiff in error, Tennison, and W. I. Sherbit appeared at the home of Sidney Warren, an old colored man, living near Eufaula, about 2 o’clock in the morning, they called Warren to the door and told him they wanted to borrow a jug or some fruit jars, and they offered him a drink of whisky from a bucket that one was carrying in his hand. He told them that he did not have any jugs or fruit jars and they left. Shortly afterwards Warren heard something disturbing his turkeys; he ran out in the yard and saw two men running from the turkey pen through the cotton patch. He went back to the house, put on his shoes and ran down the land about 600 yards to where there was a gap in the fence and there waited. The parties walked up to the gap, and he demanded his turkeys and the shooting occurred.

He testified in part as follows:

“I was sitting there and heard them talking, they came to the gap; Sherbit was ahead, and he had a sack on his ■shoulders, and the defendant was right behind him. I says, ‘Give me my turkeys,’ and this fellow Jim Tennison shot me with a pistol, the bullet hit me just above the knee and passed through my leg, then I shot at them and they ran off.”

As a witness in his own behalf, Jim Tennison testified that he was with W. I. Sherbit that night and Sherbit went to a house near Eufaula and came back with a lard bucket full of whisky and together they stopped at Sidney Warren’s to get a jug or a jar to put the whisky in; it was then about midnight; that Warren refused to give them a jug or jar and they left Warren’s together, after going a little ways they separated, witness started to go to his cousin’s and Sherbit said that he was going back and make Warren let him have a jar; that witness got lost in the dark and after wandering around saw a man ahead of him in the road, just then he heard several shots, and he ran up the road towards Eufaula; that before reaching town Sherbit overtook him, and they came into Eufaula together, they met an officer and Sherbit told him that he was the fellow that did the shooting.

It is the province of a jury in a criminal case to try the issue joined by a plea of not guilty, and, if the evidence of the state uncontradicted will support a conviction, this court will not ordinarily interfere with the verdict against the defendant.

The record in this case shows no such condition as would justify this court in holding that the verdict was contrary either to the law or the evidence. The assignment that the court erred in overruling the motion for a new trial presents no other question.

The judgment of the lower court is accordingly affirmed.

BESSEY, P. J., and EDWARDS, J., concur.  