In his charge to the jury in a criminal case the trial judge is required to set forth distinctly the laxv applicable to the case (Code Crim. Proc., art. 677), and the penalty affixed by the statute to the offense for xvhich the party is on trial is not only a part but a most important part of the law of the case. If the charge is incorrect as to the penalty, though the error may be in favor of the prisoner, the conviction cannot stand. (44 Texas, 525; 1 Texas Ct. App., 440, 514, 605; 2 Texas Ct. App., 494; 7 Texas Ct. App., 338; 5 Texas Ct. App., 38; Wilson v. The State, *56714 Texas Ct. App., 524; Turner v. The State, 17 Texas Ct. App., 587;
Under the old article of the Penal Code 722, robbery was made punishable “ by confinement in the penitentiary not less than two nor more than ten years.” But by an act passed April 12,1883, and which took effect ninety days after adjournment of the Legislature (General Laws 18th Legislature, pp. 80, 81), article 722, Penal Code, was amended, and the penalty for robbery was fixed at “ confinement in the penitentiary for life or for a term of not less than five years.”
As charged in the indictment the offense in this case was alleged to have been committed since this amendment became the law of this State; that is, it is alleged to have been committed on the-day of January, A. D. 1885; and the evidence shows that it was committed on the 4th day of January, 1885. Under the indictment and evidence it was clearly the duty of the court to charge the penalty as fixed by the amendment, viz.: at “ confinement in the penitentiary for life or for a term of not less than five years.” This the court did not do, but, on the contrary, charged the jury as provided in the old law (which had unquestionably been re-enacted in full by the amendment, because the latter covered the entire subject-matter of article 722), (Harold v. The State, 16 Texas Ct. App., 157), that, if they found the defendant guilty, they would “ assess his punishment at confinement in the penitentiary for a term of not less than two nor more than ten years.”
For this radical error in the charge of the court the judgment is reversed and the cause remanded for a new trial.
Reversed and remanded.
[Opinion delivered June 20, 1885.]