Appeal from District Court, Grant County; J.W. Bird, Judge.

Ray Newton was convicted of burglary in the second degree, and appeals. Modified and affirmed.

J.E. Falkenberg, for plaintiff in error.

J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and C.N. Ernest, Co. Atty., for the State.

PER CURIAM. The plaintiff in error, hereinafter called defendant, was convicted in the district court of Grant county of burglary in the second degree, and his punishment fixed at five years in the state penitentiary.

Defendant with two others was charged with burglarizing the store building of the Courtney Drug Company in the town of East Lamont. One of the codefendants pleaded guilty; the other codefendant was tried by a jury; each was sentenced to a term of three years in the state penitentiary.

The principal contention made is that the court admitted incompetent evidence and that the punishment assessed

Page 11

is excessive. The incompetent evidence referred to is cross-examination of defendant tending to show that he associated or had business dealings with a moonshiner and dealer in whisky in Carter county. Without going into detail in reference to the evidence on this point, we are of the opinion the county attorney was given too wide a latitude in his cross-examination, which tended to prejudice the jury against defendant and may have resulted in the assessing of more excessive punishment than would otherwise have been.

Upon a consideration of the entire record, we believe justice requires that the judgment be modified to imprisonment for a term of three years. As modified, the case is affirmed.