This is a conviction for breaking and pulling down a fence, under article 684, Penal Code. The appellant was fined $10. The information was filed on the 3d day of March, A. D. *1511884. The offense was committed on or about the 7th day of December, 1883.
An act was passed by the Eighteenth Legislature, at its special session, prescribing the punishment for the wanton and wilful cutting, injuring or destroying fences. This act took effect the 6th day of February, 1884, and was in force at the time of the filing of the information in this case.
Appellant contends that article 684 was repealed by this act of the called session of 1884, and that, therefore, the penalty of article 684 cannot be enforced.
First: Does the last act repeal article 684? We are of the opinion that it does not. The elements of the offense contained in article 684 consist in breaking, pulling down, or injuring the fence of another, without the owner’s consent. This offense is punished by fine not less than ten nor more than one hundred dollars. To be guilty of the offense contained in the last act, the party must wantonly, or with intent to injure the owner, and wilfully cut, injure or destroy a fence or part thereof, the property of another. And the penalty for this offense is confinement in the penitentiary not less than one nor more than five years. By a comparison of article 684 with the last act, it will readily be perceived that additional elements enter into the offense contained in the last act.
But, let us concede the offenses to be the same, and that the penalty of article 684 is altered by the last act; does this work a repeal of the first act? We think not. What is the rule? Article 15, Penal Code. “ When the penalty for an offense is prescribed by one law, and altered by a subsequent law, the penalty of such second law shall not be inflicted for a breach of the law committed before the second shall have taken effect. In every such case the offender shall be tried under the law in force when the offense was committed, and, if convicted, punished under that law; except that, when by the provisions of the second law the punishment of the offense is ameliorated, the defendant shall be punished under such last enactment, unless he elect to receive the penalty prescribed by the law in force when the offense was committed.”
The last act does not attempt in terms to repeal article 684, nor its penalty. Nor does article 20,- Penal Code, apply to the state of facts presented in this case.
We find no error in the judgment, and it is affirmed.
Affirmed,.
[Opinion delivered November 15, 1884.]