dissenting. I regret that I cannot concur in the opinion of the court, just read, with reference to the disposition to be made of the motion of the assistant attorney-general in this case. In the view I take of the law, the motion should be sustained and the appeal dismissed. The indictment charged the theft of a cow; the verdict found the defendant guilty, and assessed a fine of $497.50, and judgment was rendered in accordance therewith. The question is, whether appellant has been found guilty of a felony or of a misdemeanor. If of a felony, then the law is, that “ when the defendant appeals in any case of felony, he shall be committed to jail until the decision of the Court of Appeals can be made and received.” Code Cr. Proc., art. 841. It is only in cases of misdemeanor that a defendant is permitted to appeal on recognizance. Code Cr. Proc., arts. 851, 852. There can be no doubt but that defendant was charged with a felony. Now, does the simple fact that the punishment imposed is a pecuniary fine change the character of the crime committed, and make it, per se, a misdemeanor. To determine this question we must look to the statutes upon the subject. Those with reference to theft of cattle are found in the Penal Code, chap. 11, arts. 747, 749, and they read as follows : —
“ Art. 747. If any person shall steal any cattle, he shall be punished by confinement in the penitentiary not less than two nor more than five years.”
“ Art. 749. 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 *94owner, 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 an ordinary indictment for theft of cattle a party is, if the circumstances warrant, entitled to have both these statutes given in charge, and the jury may assess the punishment under the latter. Such is the case we are considering. The judge gave in charge the general definition of theft, and the two articles quoted, as applicable to the facts proven, and did not charge upon any lesser grade of offence. It is to be noted that the punishment assessed by art. 749 is alternative; that is, it may be confinement in the penitentiary, or it may be by fine not to exceed $1,000. There can be no doubt but that the verdict was found and judgment rendered under and by virtue of the provisions of this statute.
Now, what is the distinction made by our law between a felony and a misdemeanor ? We find it plainly and unmistakably declared by the Code itself: “Every offence which is punishable by death or imprisonment in the penitentiary, either absolutely or as an alternative, is a felony; every other offence is a misdemeanor.” Penal Code, art. 54. It seems to me to follow inevitably that, the punishment under art. 749 being alternative, and one of the alternatives being confinement in the penitentiary, any conviction had under its provisions must necessarily be a felony. To hold otherwise, it appears to me, would be to ignore entirely the statutory definition of felony.
In New York and Missouri, a felony is an offence for which the accused may be imprisoned in the penitentiary, and not where he must be so imprisoned. The People v. Van Steenburgh, 1 Park. Cr. 39; Johnson v. The State, 7 Mo. 183. If this case should be reversed upon the merits, then on a second trial there is no doubt but that under the same *95charge, which would be proper, ' defendant could be punished by confinement in the penitentiary. If so, what becomes of the rule that where a party has been convicted of a lesser offence he cannot be again convicted of the greater ?
I am further of opinion that there can be no theft of cattle which is not a felony.
This view is strengthened, if not conclusively settled, by that portion of our Code with reference to other offences relating to stock (chap. 13). Looking to that chapter, we find it expressly provided in art. 767, that “ if any person shall wilfully kill, or destroy, or drive, or remove from its accustomed range, any live stock not his own, without the consent of the owner, under such circumstances as not to constitute theft, he shall nevertheless be guilty of misdemeanor, and shall be punished by fine not exceeding $1,000.”
If the view here presented of the law be correct, then it follows that defendant was convicted, as I believe, of a felony. If convicted of a felony, then he should have gone to jail to await the decision of this court upon his appeal, and could not avail himself of the right of appeal by entering into a recognizance. Having entered into a recognizance, which is unauthorized by law, the motion of the assistant attorney-general should prevail, and the appeal be dismissed.