Robert Campbell v. The State, 22 Tex. Ct. App. 262

White, Presiding Judge. Under an ordinary indictment for theft of an animal, the accused may be convicted of that offense or of wilfully taking into possession and driving from its accustomed range live stock not his own, without the consent of the owner, and with intent to defraud the owner thereof, which is made by statute both theft and a felony. (Penal Code, Art. 749; Foster v. The State, 21 Texas Ct. App., 80; Smith v. The State, Id., 134.) The indictment in this case was for theft of the animal. Appellant has been twice tried and twice convicted under it.

On the former trial he was found guilty of theft and his punishment was assessed by the verdict and judgment at a fine of three hundred dollars. Evidently this verdict and judgment were based upon

article 749, of the Penal Code, which provides that, “If any person shall wilfully take into possession and drive, use, and remove from its accustomed range a,ny live stock not his own, without the consent of the owner, and with intent to defraud the owner thereof, he shall he deemed guilty of theft, and on conviction shall be confined in the penitentiary not less than two nor more than five years, or be fined in a sum not to exceed one thousand dollars, or by both such imprisonment and fine, at the discretion of the jury trying the case.” This statute provides for a character of cattle theft different from that denounced generally in

article 747, Penal Code, which declares that, “ If any person shall steal any cattle he shall be punished by confinement in the penitentiary not less than two nor more than five years.” It will be noted that the punishment prescribed by

article 749 is fixed at the same number of years in the penitentiary, and, in addition, the prisoner may be fined in any sum not exceeding one thousand dollars. So the punishment under

article 749 may be greater than that imposed by

article 747. But in as much as the punishment under the latter

article may be simply by fine without imprisonment, this crime is ordinarily considered, and has perhaps been erroneously called, a lesser degree of theft. Whether a lesser or greater degree makes no difference really, since it is theft per se, and made so by the terms of the statute. Being theft, an indictment in the ordinary form of theft of animals is sufficient to cover the crime and admit the proof essential to its establishment. As stated above, on his first trial, appellant was convicted of theft, under a charge of the court submitting the offense as defined in

Article 749, and his punishment was affixed at a pecuniary fine of three hundred dollars. This judgment was set aside and a new trial awarded on his motion. On this second trial, and upon a charge submitting the law in the same manner as to

Article 749, appellant has again been convicted of theft, and the punishment now assessed against him by the verdict and judgment is imprisonment in the penitentiary for a term of two years. It is claimed that this judgment is erroneous and unwarranted by law, because, the previous judgment having only imposed a fine, he could not afterwards be convicted to punishment in the penitentiary.

In other words, the position contended for is that the former conviction was for a lesser grade of the crime, to wit, a misdemeanor, and that it is a bar to any higher grade, and that defendant could not afterwards be tried, much less convicted, for the felony. In Sisk v. The State, 9 Texas Court of Appeals, 90, which was a case involving the construction of

Article 749, a majority of the court held that “if a defendant be found guilty of an offense punishable by the penitentiary or by fine, and the jury assess his punishment at a fine, the conviction is not for felony but for misdemeanor.” If this decision be correct, then appellant’s position is impregnable. (Robinson v. The State, 21 Texas Ct. App., 160.) In a dissenting opinion in Sisk’s case the writer differed with the majority of the court, maintaining that there could be no theft of cattle which is not a felony under our law.

It was said: “ Now, what is the distinction made by our law between a felony and a misdemeanor ? We find it plainly and unmistakably declared by the Code itself, ‘Every offense which is punishable by death or imprisonment in the penitentiary, either absolutely or as an alternative, is a felony.’ (Penal Code, Art. 54.) It seems to me to follow inevitably that the punishment under

Article 749 being alternative, and one of the alternatives being confinement in the penitentiary, any conviction had under its provisions must necessarily be a felony. To hold otherwise, it appears to me, would be to ignore entirely the statutory definition of felony.” Opinion delivered November 13, 1886. In Alabama, where it seems their definition of felony is similar to ours, it was held, in Clifton v.

The State, that “it is the capacity of an offense to be punished by confinement in the penitentiary, and not that such punishment of necessity follows conviction, that distinguishes crime and separates felonies from misdemeanors; and hence the offenses created by statute, falling precisely within the definition of a felony given by statute—a public offense which may (not must) be punished by confinement in the penitentiary—are felonies, although under the- statute persons convicted thereof may be fined, imprisoned in the county jail, or sentenced to hard labor for the county.” “If by the terms of the statute,” says Mr.

Bishop, “the court or jury is at liberty to inflict some milder punishment, instead of imprisonment or death, this discretion, it is held, does not prevent the offense from being a felony. That the heavier punishment may be imposed is sufficient.” (1 Bish. Cr. L. [7 ed.], sec. 619.) We are of opinion that the majority opinion in the Sisk case should be and it is hereby overruled.

The judgment rendered on the first trial of appellant was not a conviction for a misdemeanor, and it could not bar a subsequent prosecution and conviction for felony, with imprisonment in the penitentiary under the statute. (Art. 749, Penal Code.) There is no other question of sufficient importance to require a discussion. There being no reversible error made to appear on appeal, the judgment is affirmed. Affirmed.