Irvin v. State , 25 Tex. Ct. App. 588 ( 1888 )

White, Presiding Judge.

Appellant was tried and convicted for theft of property under the value of twenty dollars, the case being a misdemeanor, and prosecuted by information. The punishment assessed by the verdict and judgment was imprisonment in the county jail for a period of thirty days and a fine of fifty dollars.

As to the penalty, the charge of the court instructed the jury that, if they found the defendant guilty, they would “assess his punishment at not more than one year’s imprisonment in the county jail (during which time he may be put to hard labor) and a fine of not more than five hundred dollars.” This charge was erroneous in that it failed to further instruct the jury that they might inflict the imprisonment without fine (Penal Code, art. 736), and the error is radical and fundamental, and to the prejudice of defendant. (Haynes v. The State, 2 Texas Ct. App., 84; Allen v. The State, 7 Texas Ct. App., 298; Veal v. The State, 8 Texas Ct. App., 475; Shears v. The State, Id., 467; Marks v. The State, 10 Texas Ct. App., 334; Sanders v. The State, 17 Texas Ct. App., 222.)

Opinion delivered June 9, 1888.

The judgment is reversed and the cause remanded. -

Reversed and remanded.