Sisk v. State

Clark, J. The appellant was indicted for theft of neat cattle, to wit, of a cow of the value of $6. The verdict was: “ We, the jury, find the defendant guilty, and assess the fine at four hundred and ninety-seven and TST°T dollars ($497 jW).” The recitals of the judgment subsequent thereto are : “ It is therefore by the court considered and adjudged that the defendant be, and he is hereby adjudged guilty of theft, as found by the jui’y,” etc. His motions for new trial and in arrest of judgment having been overruled, the defendant gave notice of appeal, and entered into a recognizance, which recites that he was charged with the [91] offence of theft of cattle, and that he had been convicted of said offence, and fined in the sum of $497.50. A motion to dismiss the appeal is now submitted by the assistant attorney-general, upon the ground that the recognizance shows that appellant was charged with and convicted of a felony, and that no appeal can be prosecuted by entering into a recognizance, when the latter shows upon its face that the conviction was of a felony. The general proposition that a recognizance must disclose a conviction for a misdemeanor is undoubtedly correct, but this is qualified by an express provision of law that the recognizance must state the exact offence of which the defendant was convicted. Code Cr. Proc., art. 852; Smalley v. The State, 3 Texas Ct. App. 202. The offence is classified as a felony or a misdemeanor, not altogether by the name affixed, but by the penalty found. If the punishment assessed is confinement in the penitentiary for any length of time, then the conviction is of a felony. If a pecuniary fine is imposed, or a term of imprisonment in the county jail, then, under the law, the defendant has been convicted of a misdemeanor, and has the right to prosecute an appeal without subjecting himself to incarceration pending its determination. It is true, our Penal Code provides that “ every offence which is punishable by death or by imprisonment in the penitentiary, either absolutely or as an alternative, is a felony; every other offence is a misdemeanor.” Art. 54. But this must be held as an abstract, general classification of offences, and not of controlling or paramount significance in the solution of the question under consideration. The law very properly classes as a felony, in the abstract, any offence to which is affixed as a punishment imprisonment in the penitentiary, or, in the alternative, a pecuniary fine, or imprisonment in the county jail; because, when a person charged with such an offence is brought to trial, rights important to him upon such trial are to be deter [92] mined according to the fact whether he is charged with a felony or a misdemeanor. The number of challenges allowed him by law, the right to have the jury charged in writing as to the law applicable to the case, the right to be heard by at least two counsel in argument, and even the jurisdiction of the tribunal which is to pass upon his guilt or innocence, with other rights which need not be enumerated, are determined by the fact whether he is charged with a felony or a misdemeanor. And a manifest purpose of the Code, in the article quoted, was to prevent the deprivation of any of these rights upon a false theory that the defendant was not entitled to them, or any of them, because he might be convicted of only a misdemeanor. It fixes the status of such offences, pending the trial, as felonies ; but such characteristic cannot continue after a trial has been had and the defendant has been convicted only of a misdemeanor. It cannot be said that the appeal, then, is in a case of felony, because the jury have altogether ignored the felonious punishment, and by their verdict have stamped the offence with the impress of a misdemeanor. The conviction in this case was evidently based upon art. 749 of the Penal Code, which reads as follows: “If any person shall wilfully take into possession, and drive, use, or remove from its accustomed range, any live stock not his own, without the consent of the owner, and with intent to defraud the owner thereof, he shall be 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 $1,000, or by both such imprisonment and fine, at the discretion of the jury trying the case.” Under the views herein expressed, the defendant has been convicted of a misdemeanor, and has the right to prosecute appeal from such conviction by entering into a recognizance. The mere fact that the verdict found the defendant guilty generally, without specifying that it was for a misdemeanor, [93] cannot invalidate this right; for the punishment affixed settles the status of the offence of which the defendant has been convicted, and not the original charge which the law has classed generally as a felony. The motion of the assistant attorney-general to dismiss the appeal is overruled. Motion to dismiss overruled.