Oliver Spradling v. The State, 30 Tex. Ct. App. 595

DAVIDSON, Judge. Appellant was convicted on an indictment charging him with the theft of twenty-six head of sheep, in the first count; and in the second, for receiving and concealing same, knowing same to have been stolen. On the trial he was convicted under the second count.

On the trial of the case the learned trial judge charged the jury with regard to the penalty as follows: “The punishment for the theft of property of the value of $20 or over is by confinement in the penitentiary for any term not less than two years nor more than ten years,” etc. “The punishment for receiving and concealing stolen property, knowing it to have been stolen, is the same as it is for theft.” The charge of the court as to the penalty above set out was specially excepted to, and a bill of exceptions reserved by defendant’s counsel. The penalty, as charged by the court, was that prescribed by

article 735, Penal Code, for theft generally of property amounting in value to. $20 or more. In this case, however, the appellant was indicted for the theft of sheep. To this offense a special penalty is by statute affixed.

Article 748 of the Penal Code provides, that if any person shall steal any sheep, hog, or goat, if the value of the property stolen be of the value of $20 or over, he shall be punished by confinement in the penitentiary not less than two nor more than five years; and the offense for which appellant was indicted, tried, and convicted being the receiving of stolen property, the penalty, by express provision of the statute, is made the same as though he had stolen the specific animal.

Article 743, Penal Code. The rule is well settled, that where the charge of the court misleads the jury as to the penalty, or prescribes a penalty different from that fixed by the terms of the law itself, such charge is radically and fundamentally erroneous, whether excepted to or not, and even though it inures to the benefit of the accused. • Graham v. The State, 29 Texas Ct. App., 31; Williams v. The State, 25 Texas Ct. App., 76. For collation of other authorities, see Willson’s Crim. Stats., sec. 2348. We know of no exception to this rule, save the case of Work v.

The State, 3 Texas Court of Appeals, 233, which seems to announce a different doctrine, and that case is hereby overruled on this point. This is the only error which we consider material and necessary to be noticed, and on account of this error the judgment is reversed and the cause remanded. ’Reversed and remanded. Judges all present and concurring.