Opinion
No. 274.
Decided April 7, 1894
1. Theft of Hogs — Charge — Penalty. — On a trial for theft of hogs, alleged to have been committed before that offense was made a felony, and where the value alleged was under $20, it was error for the court to charge the jury "to fix his (defendant's) punishment by imprisonment in the county jail not to exceed one year, and by fine in any sum not to exceed $500," the punishment assessed by the statute being confinement in the county jail not exceeding one year and by "fine not exceeding $500, or by such imprisonment without fine."
2. Same. — The punishment for theft of hogs before that offense was made a felony per se, where the value was under $20, was by imprisonment in the county jail, with or without fine not exceeding $500. Penal Code, art. 748.
APPEAL from the County Court of Llano. Tried below before Hon. J.M. MOORE, County Judge.
This appeal is from a judgment of conviction under an information charging defendant with the theft of five hogs of the aggregate value of $13, the same being the property and taken from the possession of one C.D. Owens; the punishment assessed by the verdict and judgment being three days' imprisonment in the county jail, and a pecuniary fine of $25.
No statement necessary.
No brief for appellant.
R.L. Henry, Assistant Attorney-General, for the State.
Appellant was convicted of hog theft, his punishment being assessed at three days' confinement in the county jail, and a fine of $25.
In regard to the penalty, the court instructed the jury, in case of conviction, to "fix his punishment by imprisonment in the county jail not to exceed one year, and by fine in any sum not to exceed $500."
The charge is erroneous. At the time of the theft the offense charged was a misdemeanor, the value being alleged at less than $20, and the punishment was by confinement in the county jail not exceeding one year, and by fine not exceeding $500, or by such imprisonment without fine.
Under the charge given the jury were required, in case of conviction, not only to imprison the defendant, but also to assess a fine in addition; whereas the punishment prescribed by law was imprisonment with or without such fine.
The judgment is reversed, and cause remanded.
Reversed and remanded.
Judges all present and concurring.