The opinion
On Rehearing.
PER CURIAM.
The contention is made on behalf of Claud C. Arnold, which the record supports, that he did not directly profit from the transactions alleged in the information. It is further urged, and supported by the record, that he personally made restitution to the state the sum of which it had been defrauded in these transactions.
In addition thereto, the record shows that Mr. Arnold has in the past made contributions to Ardmore and Carter County greatly in excess of any business profit he may have indirectly derived from these transactions. In this regard, it appears for many years he has furnished, without cost, to the 4-H Clubs of Carter County a new automobile for use in that worthwhile program. In fact, the record discloses he has responded to most all the community needs tending toward civic betterment.
All the foregoing conditions are referred to in a letter from the trial judge, Hon. Glenn O. Morris, to this Court. Finally, Judge Morris concludes:
“Undoubtedly, this defendant has suffered since his conviction great mental pain and anguish, probably more than is reflected by the verdict.
“In this case, I feel now that justice should be tempered with a little mercy. I would recommend that the one year imprisonment be commuted and that the $5,000.00 fine assessed by the jury ordered paid.
“Please do not feel that I am presumptuous in writing this letter as it is intended merely as a suggestion and an expression of my feelings as a trial judge.”
The prosecutor, Mr. Venters, has personally expressed himself to the Court as not being opposed to extension of mercy toward Mr. Arnold.
It is therefore the opinion of the Court that as to defendant Claud C. Arnold, the judgment and sentence should be modified to the payment of the $5,000 fine, otherwise the petition for rehearing is overruled. As to defendant Heartsill, the petition for rehearing is overruled and the judgment and sentence imposed by the trial court is to be enforced, both as to fine and imprisonment. It is so ordered.