The opinion
On Rehearing.
Riddick, J. Of on
After the judgment of reversal was entered in this case, the attorney general filed a motion to modify the judgment. He asked that the case be remanded, not for a new trial, but with an order that the circuit court sentence the defendant for the crime of grand larceny. Our statute provides that “the supreme court may reverse, affirm or modify the judgment or order appealed from, in whole or in part, and as to any or all parties, and when the judgment or order has been reversed, the supreme court may remand or dismiss the cause, and enter such judgment upon the record as it may in its discretion deem just.” Sand. & H. Dig. sec. 1064. We have twice held that this statute applies to judgments in criminal as well as civil cases. Simpson v. State, 56 Ark. 19 ; Brown v. State, 34 Ark. 232 . In the case last cited the circuit court rendered judgment against Brown that he be imprisoned for the term of two 37ears in the penitentiary. This court modified that judgment by reducing the imprisonment to one year. In Simpson v. State, supra, the jury found the defendant guilty of murder in the first degree. Upon an appeal it was held that the evidence did not sustain a verdict for murder in the first degree. The sentence for murder in the first degree was therefore set aside, and the cause remanded to the circuit court with directions to sentence the prisoner for murder in the second degree. A ruling the same in principle was made by the supreme court of the United States in the recent case of Ballew v. United States, 160 U. S. 187 . See, also, opinion of Mr. Justice Field In re Bonner, 151 U. S. 260 .
The charge of robbery made against the defendant in this case includes larceny. The indictment alleges the value of the money taken to be one hundred dollars, and under this indictment the defendant might have been convicted of grand larceny. Haley v. State, 49 Ark. 147 ; Allen v. State, 58 Ala. 98 ; Com. v. Prewitt, 82 Ky. 240 ; State v. Jenkins, 36 Mo. 372 ; 1 Bish. New Crim. Law, sec. 795. As the indictment for robbery includes a charge of larceny, it follows that the jury, in finding the defendant guilty of robbery, must have found the defendant guilty of larceny, and also of the aggravating matter which, together with the larceny, makes robbery. 2 Bish. New Crim. Law, sec. 1159. There is no question or doubt about the value of the property taken. It was over ten dollars, and, if the defendant is guilty of larceny, it is grand larceny.
"We have said that the evidence does,not sustain the charge of robbery, but that it does clearly make out a case of grand larceny. The fact that the defendant was found guilty of a greater crime than was warranted by the evidence does not compel us to set the entire conviction aside when it is in part clearly correct. It' was to avoid such an unreasonable and costly procedure that the statute above referred to was enacted. The defendant in this case was sentenced to be imprisoned for ten years, when the maximum punishment for larceny of money is imprisonment for five years. Under the statute and the authorities cited above, we will relieve the defendant from the excessive judgment, of which he has a right to complain, but affirm the conviction to the extent that it seems clearly right. The judgment of imprisonment for robbery is set aside, and the cause remanded, with an order that the circuit court sentence the prisoner for grand larceny.