After the opinion was rendered in this case, a petition for rehearing was filed, in which attention of this court was directed to the fact that the attorneys for the defendant, after being served with the *Page 242 motion to dismiss the appeal filed by the Attorney General, procured a stipulation signed by the special counsel appointed by the trial court to represent the state at the trial of said case, in which stipulation it was agreed that the case made was served upon said counsel for the state during the statutory period within which the plaintiff had been granted time to make and serve case-made, and that through an oversight such stipulation had been omitted from the case made. This stipulation was delivered to the Attorney General with the understanding that it was to be approved by him and presented to this court for an order directing its inclusion in the case made filed in this court.
The Assistant Attorney General, who represented the state and who filed the motion to dismiss the appeal on behalf of the state, has appeared before the court and stated that the stipulation was left with him as related by counsel for the defendant, but through inadvertence and oversight on his part it was never presented to the court for filing as a part of the record in this case.
Counsel for defendant should have presented the matter directly to the court, or the very least they could have done was to have followed up the matter to see that the Attorney General had presented the matter for the approval of the court. However, this court does not want to deprive the defendant of a right to have his conviction reviewed because of some technical oversight which occurred through the laches of his counsel. For that reason, a rehearing was granted and counsel for defendant was given permission to file a brief in support of the appeal. It is unnecessary to again recite the facts. We have considered the brief filed on behalf of the defendant and have again reviewed the record. It is our conclusion *Page 243 that the judgment of conviction should be affirmed but that the interests of justice require that the punishment be modified by a reduction of the term of imprisonment in the State Penitentiary from a term of 10 years to a term of 5 years.
It is therefore ordered that the judgment and sentence of the district court of Oklahoma county be modified by reducing the punishment from ten years in the State Penitentiary to a term of five years in the State Penitentiary, and the judgment and sentence as thus modified is affirmed.
Mandate is ordered issued forthwith.
BAREFOOT, J., concurs. DOYLE, J., not participating.