Tripp v. State ( 1951 )

On Rehearing.

BRETT, P. J.

On the petition for rehearing we have carefully considered the defendant’s contention. In light of the record we are of the opinion that the petition for rehearing is without merit. The defendant made no objection to the court’s instructions, and made no request for additional instructions. On this point in addition to the authorities heretofore cited and referred to, see Carpenter v. State, 56 Okla. Cr. 76, 82, 33 P. 2d 637, 639, wherein this court said:

“If, when the court instructed the jury, the defendant desired an additional instruction upon his theory of the case it was his duty to have prepared the same and requested the court to give it.” Chapman v. State, 84 Okla. Cr. 41, 178 P. 2d 638.

Under these conditions the defendant’s complaint is of no avail. While we are not inclined to impair the deterrent effect of the statutes against embezzlement by public officials, we are of the opinion that the penalty herein imposed is too severe. Particularly is such the ease in view of the defendant’s advanced years, and his past good record. Therefore, under the authority of Title 22, § 1066, O. S. A. 1941, the judgment and sentence herein imposed is accordingly modified to a term of 6 months in the penitentiary, and as so modified is affirmed.

JONES and POWELL, JJ., concur.