dissenting. I concur with the majority opinion holding it was prejudicial error for the trial judge to refuse appellant’s request to instruct the jury on the lesser included degree of theft of property.
I respectfully dissent from the majority decision to reverse and remand the case for a new trial because of the failure to instruct on the lesser included degree of theft.
Here the evidence of theft was overwhelming and reversal for a new trial is not required. The error in failing to give the instruction on the lesser included degree of theft had no bearing upon the jury’s determination of guilt or innocence. The error affected only the punishment imposed. In these circumstances the appellate court may modify the judgment appealed from and fix a reduced sentence. The following cases are authority for this procedure. Hamilton v. State, 262 Ark. 366, 556 S.W.2d 884 (1977); Richie v. State, 261 Ark. 7, 545 S.W.2d 638 (1977); Osborne v. State, 237 Ark. 170, 371 S.W.2d 518 (1963); Bailey v. State, 206 Ark. 121, 173 S.W.2d 1010 (1943); Woodall v. State, 200 Ark. 665, 140 S.W.2d 424 (1940).
Reversing and remanding the case for a new trial is, in my view, a very inefficient way to deal with the error.
The sentence should simply be modified to a sentence in conformity with the permissible sentence for the lesser included degree of theft, and the case affirmed as modified.