¶1Appellant was convicted on the twentieth day of October, 1922, in the Sebastian Circuit Court, Fort Smith District, for the crime of grand larceny, and was sentenced during said term of court to serve a term of one year in the penitentiary as punishment therefor. An appeal from the judgment and sentence was prosecuted to the Supreme Court, and on the twenty-seventh day of January, 1923,' the judgment of the trial court was affirmed. On the thirteenth day of February, 1923, appellant filed a motion before the trial court to modify the judgment so as to sentence him to the reform school, instead of the penitentiary. In support of the motion he alleged that he was a minor, under eighteen years of age. The proof showed that he was sixteen years of age when convicted and sentenced. The court overruled the motion for a modification of the judgment, from which is this appeal. Appellant contends that the court erred in overruling the motion, and relies for a reversal upon § 804 of Crawford & Moses’ Digest, which is as follows, in part:
¶2“All convicts in the penitentiary now, and all persons hereafter sentenced to the penitentiary, under the age of eighteen years, shall be committed to and placed in said reform school by said board; provided, said persons under eighteen years of age convicted of a felony may be sent to the- penitentiary, if, in the judgment of the trial judge, such course may be expedient.”
¶3The interpretation placed on said act by learned counsel for appellant is that the statute is mandatory in requiring the trial court to sentence a minor, under the age of eighteen years, convicted of a felony, to the reform school, unless some substantial reason affirmatively appears why a penitentiary sentence should be imposed. We do not so interpret it. The statute invests the trial court with discretionary power to impose either a penitentiary sentence or, a sentence to the reform school upon minors, under eighteen years of age, convicted of a felony, during the term of court at which convicted. Of course, this means a sound discretion, and the facts in each case must determine whether the trial court has abused the discretion lodged in him. In the instant case the trial court was without jurisdiction to modify the judgment, upon motion, after the term of court at which the judgment was rendered had expired.
¶4No error appearing, the judgment is affirmed.