Pullins v. State , 373 S.W.2d 256 ( 1963 )

WOODLEY, Presiding Judge.

Our opinion on original submission affirming the conviction is withdrawn.

The complaint and information alleged the theft of one coat of the value of ten dollars. The judgment appealed from was entered on a plea of guilty before the court to the information and shows that the court assessed as punishment a fine of One Hundred Dollars, but no jail term.

Theft of property of the value of over $5 and under $50 is punishable by imprisonment in jail not exceeding two years, and a fine not exceeding Five Hundred Dollars, or by such imprisonment without fine. Art. 1422 Vernon’s Ann.P.C.

Imprisonment in jail being mandatory, the conviction with punishment by fine only cannot be affirmed. Olsson v. State, 171 Tex.Cr.R. 43, 344 S.W.2d 693; Craven v. State, Tex.Cr.App., 350 S.W.2d 34; Compian v. State, Tex.Cr.App., 363 S.W.2d 468.

The appellant’s motion for rehearing is granted. The judgment is reversed and the cause remanded..