(Syllabus.)

1. Appeal and Error - Modification of Judgment to Petit Larceny Where Conviction for Grand Larceny not Supported by Evidence. Where an accused is convicted of grand larceny and the evidence is insufficient to show the value of the property stolen exceeds $20, and for that reason does not sustain the judgment, but is sufficient to show the included offense of petit larceny, the judgment will be modified to petit larceny, and the punishment in like manner modified to that fixed by statute for petit larceny.

2. Same. In prosecution for grand larceny, evidence held insufficient to support a conviction therefor, but held to make out case of petit larceny.

Appeal from District Court, Mayes County; Ad V. Coppedge, Judge.

Loy Harrington was convicted of grand larceny, and he appeals. Judgment modified, and, as modified, affirmed.

A.C. Brewster, for plaintiff in error.

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

EDWARDS, P.J. Plaintiff in error, hereinafter called defendant, was convicted in the district court of Mayes county of grand larceny, and was sentenced to serve a term of one year in the state penitentiary.

Plaintiff in error was charged with the larceny of a pistol of an alleged value of $25. The testimony is challenged as insufficient, and, while not overwhelming, it is nevertheless ample to support a verdict of guilty.

Upon the question of the value of the property stolen, however, we think it is not clearly proven that it was of

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a value exceeding $20. The testimony is that the pistol was a secondhand automatic, somewhat out of repair, and is valued by one witness as low as $7. The principal witness for the state testified that it had a value, "something about $25." This proof of value is too uncertain to support the higher grade of larceny, but is sufficient to support a conviction for petit larceny. The judgment is therefore modified from grand larceny to the included offense of petit larceny, and the punishment fixed at a fine of $100, and a term of 30 days in the county jail. Lebo v. State, 40 Okla. Cr. 116, 267 P. 288; Mayberry v. State, 44 Okla. Cr. 134, 279 P. 934.

As modified, the case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.