Appeal from District Court, Tulsa County; Prentiss E. Rowe, Judge.

Page 362

On Rehearing.

Judgment and sentence modified, and as modified affirmed.

For former opinion, see 79 Okla. Cr. 93, 151 P.2d 944.

W. C. Henneberry and C. Lawrence Elder, both of Tulsa, for plaintiff in error.

Randell S. Cobb, Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for defendant in error.

BAREFOOT, P. J. The original opinion in this case was handed down on September 20, 1944. In the original opinion it was stated that the defendant had been sentenced to serve a term of "six" years in the State Penitentiary. An examination of the record reveals that it should have read a term of "seven" years. A petition for rehearing, and brief in support thereof, has been filed.

We have again carefully reviewed the record, and find that since this case was decided, a letter has been filed herein by the trial court, in which he states that he has made an investigation of the facts in this case, and is now of the opinion that the case should at least be modified.

While we do not hold that this statement is in any way binding upon this court, we have examined the record, and have decided that by reason of the small value of the stolen property ($3) alleged to have been received by the defendant, and the fact that in the original opinion we found that certain incompetent evidence had been admitted, that the ends of justice demand a modification of the judgment and sentence in this case from seven years in the State Penitentiary to three years in the State Penitentiary.

Page 363

As so modified, the judgment and sentence of the district court of Tulsa county is affirmed.

JONES, J., concurs. DOYLE, J., not participating.

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