Appeal from Superior Court, Muskogee County; Guy F. Nelson, Judge.

Buzz Wright was convicted of a violation of the prohibition liquor laws, and he appeals. Modified and affirmed

Harry F. Eagan, for plaintiff in error.

S.P. Freeling, Atty Gen., and W.C. Hall, Asst. Atty. Gen., for the State.

PER CURIAM. Buzz Wright was convicted in the superior court of Muskogee county of selling a half pint of whisky to one Dixie Woodward in the town of Boynton in said county in the month of May, 1917, and sentenced to pay a fine of $500 and to serve six month's imprisonment in the county jail. In asking a reversal of this cause, counsel for defendant rely exclusively upon the alleged prejudicial error of the trial court in refusing to grant a new trial upon the ground of newly discovered evidence. We have carefully examined the affidavits attached to the motion for a new trial, setting out the alleged newly discovered evidence, and have considered the same in connection with the evidence of guilt introduced upon the trial of this cause, and find no manifest abuse of the trial court's discretion in overrulling said motion. This conviction is based on the unsupported evidence of the prosecuting witness and the defendant, as a witness in his own

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behalf, positively denied making the sale of any whisky to the prosecuting witness. There is no showing that the defendant is a confirmed bootlegger, and the punishment imposed is such as is ordinarily imposed upon those who are shown to be habitual offenders of the prohibitory liquor laws. Under the circumstances, it is the opinion of this court that the defendant is not entitled to a new trial upon the showing made, but that the ends of justice will be best subserved by modifying the judgment to provide an imprisonment for a term of 30 days in the county jail and a fine of $50 and costs of the prosecution, and it is ordered that the judgment be thus modified, and as modified, be affirmed.