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 bysuch 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 *Page 166 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.