(Syllabus.)

1. Appeal and Error — Sufficiency of Evidence, Though Conflicting, to Sustain Conviction. If there is any substantial competent evidence in the record to sustain the conviction Criminal Court of Appeals will not interfere with the verdict of the jury even though there appears a material conflict in some of the testimony of the witnesses for the state.

2. Same — Modification of Sentence Where Confusion in Testimony of State's Witnesses as to What Crime Was Committed. Criminal Court of Appeals in furtherance of justice will modify sentence imposed where there is confusion in the testimony of the state's witnesses as to whether crime allegedly committed by defendant was embezzlement or larceny, and doubt as to whether the property taken was of the value of twenty (20) dollars or less.

Appeal from District Court, Seminole County; Bob Howell, Judge.

Eugene Davis, alias Gene Davis, was convicted of grand larceny, after former conviction of a felony, and he appeals. Affirmed as modified.

Sid White, Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., for defendant in error.

JONES, J.

The defendant, Eugene Davis, alias Gene Davis, was charged by an information filed in the district court of Seminole county with the crime of

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grand larceny after former conviction of a felony; was tried; convicted; and sentenced to serve a term of three years imprisonment in the penitentiary; and has appealed.

No brief has been filed on behalf of the defendant, which leaves for consideration the questions as to whether the evidence was sufficient to support the conviction and whether during the course of the trial fundamental error was committed.

The proof of the state showed that Isaac Impson, an old age pensioner, came to the city of Wewoka on May 5, 1949. He had about sixty (60) dollars on his person. At a cafe he met defendant who is an Indian, and some other Indians. These parties had all been acquainted for some time. All the parties drank a considerable quantity of beer. The complaining witness became quite drunk. He testified that the defendant took two (2) twenty (20) dollar bills out of his pocket. However, his story on cross-examination was weakened by the fact that he identified a short, fat Indian in the jail the following day as the one who took his money, when in fact the defendant was six feet four inches tall and very slender. Defendant was afflicted with tuberculosis at the time of the trial. The defendant and Peter Tiger, who was present in the cafe, were arrested north of Wewoka an hour or so after the complaint was made. The defendant had thirty-eight (38) dollars in his pocket, including a twenty (20) dollar bill. Peter Tiger and Mandy Nokusile, who were two of the Indians present at the time of the alleged theft, testified. Mandy Nokusile stated she saw defendant snatch the money out of the hands of the old man and flee from the cafe. She saw that one of the bills was a twenty (20) dollar bill and there was some more money besides. Peter Tiger testified that he didn't see the defendant get any money out of the old man's pocket but he saw the old man give Gene some money to buy some beer but the defendant, Gene Davis, left with it.

Chris Khoris, owner of the cafe, testified that he saw the three Indians and Isaac Impson, the complaining witness, sitting at a table in his cafe; that they drank some beer while they were there; that the last order they gave for beer was for a quart of beer and he personally as owner of the cafe delivered the beer, and then defendant, Davis, handed him a twenty (20) dollar bill; that he brought back the change which was nineteen (19) dollars and fifty (50) cents and gave it to Mr. Impson. Later the old man came to him and said, "I've been robbed". The witness asked him who did it and the old man said, "I don't know; I'm robbed". The witness called the city police station. There were also some other Indians standing around the table and drinking beer. On cross-examination the witness said that the defendant came to the bar which he was operating and ordered a quart of beer, and when he handed the defendant a quart of beer the defendant gave him a twenty (20) dollar bill; that he placed the nineteen (19) dollars and fifty (50) cents on the bar and another girl, other than Mandy Nokusile, who was standing at the table where the prosecuting witness and the other parties were, took the money and gave it to the old man.

The police testified that when they arrived at the cafe they found the old man in a drunken condition and took him to jail, and the defendant was arrested that same day north of Wewoka near the home of a relative.

This evidence is not very satisfactory but we cannot say that it wholly fails to support the judgment. We do feel that the fact that this Indian defendant had entered a plea of guilty to three charges of larceny on another occasion about five years previous to the time of the crime charged weighed heavily against him and no doubt caused the jury to resolve all doubt against him and give him the three years' imprisonment. The proof of the defendant showed that he was a tubercular and at the time of the trial was awaiting transportation to the tuberculosis

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sanitarium for treatment; that the money he had in his possession was the remainder of sixty (60) dollars given him by his mother to pay entrance fees to a rodeo at Wetumka. The defendant was a star rodeo performer.

Under all the facts and circumstances, we have come to the conclusion that justice would be served by modifying the sentence of three (3) years imprisonment in the state penitentiary to a term of eighteen (18) months imprisonment in the state penitentiary, and the judgment and sentence as thus modified is affirmed.

BRETT, P.J., concurs.