The information charged appellant under article 1410 of the P. C. with theft of seed cotton of the value of $8.75. The punishment for theft of property under the value of $50.00 and over the value of $5.00 is imprisonment in jail not exceeding two years, and by fine not exceeding $500.00, or by such imprisonment without fine. See article 1422, P. C., as amended by Acts 40th Leg., page 232, ch. 157. The 41st Leg., ch. 28, page 62, apparently attempted to define an offense for fraudulently taking cotton or cotton seed, and fixing a penalty therefor in the following language:
“Whoever shall fraudulently take cotton and cotton seed or either cotton or cotton seed under the value of fifty ($50.00) Dollars, shall upon conviction for the first offense be fined not less than Fifty ($50.00) Dollars nor more than Five Hundred ($500.00) Dollars and by confinement in the County Jail not less than thirty (30) days nor more than six (6) months; and for the second and subsequent offenses he shall be punished by confinement in the Penitentiary not less than one year nor more than five years.”
In the present case the court over objection authorized the penalty fixed by the Act of the 41st Legislature, and appellant’s punishment was assessed at a fine of $50.00 and 30 days in jail. This is precisely the situation which arose in Musick’s case, reported in 51 S. W. (2d) 715, in which the Act of the 41st Legislature was held invalid. For the same reason the judgment in the present case cannot stand.
Appellant urges that the evidence does not support the verdict. We do not discuss it, but express grave doubts as to its sufficiency. It may not be the same on another trial should one be had.
For the error in the penalty authorized in the court’s instructions the judgment is reversed and the cause remanded.
Reversed and remanded.