The indictment against the defendant was found under the Code of 1886, and, of course, for an offense committed with which he was charged while the statute making the stealing of a hog without reference to its value grand larceny. — Code, 1886, § 3789. Under the Code of 1896, the stealing of a hog may be grand or petit larceny, depending upon its value. If its value is twenty-five dollars or more, it is still grand larceny, if less than twenty-five dollars, petit larceny. The effect *23of tlie adoption of tlie Code of 1896, was to repeal section 3789 of tlie Code of 1886, and were it not for tlie provisions of section 5541 (Code, 1896), tlie prosecution of tlie defendant would bare been terminated. Section 5541, after making provision for tlie preservation of tlie prosecution of an offense committed under tlie law repealed by tlie adoption of tlie Code whether begun before or after the enactment of such repealing, revising, amending or altering law, is governed by the law under which the offense was committed, also provides that in cases where the penalty for an offense has been altered, the defendant in the prosecution may elect to take the neay penalty, but such election must be made before the case is submitted to the jury. It is this latter provision of the statute that the defendant attempted to invoke in the court beloAV, and the refusal of the trial court to permit. him to elect to be tried for petit larceny instead of grand larceny constitutes his only cause of complaint and exception.
It Avas not the purpose of the statute, and no such implication can be gathered from its language, to give to a defendant the right to elect to be tried for an offense not charged in the indictment. Its plain language is that ‘hvhere the penalty for the offense may haAre been altered, the defendant may elect to take the neAv penalty.” Tlie penalty for the larceny of a hog Avas not altered by the Code of 1896, but the offense Avas changed from grand to petit larceny if the value of the hog was less than twenty-five dollars. If the value of the hog stolen by the defendant had been twenty-five dollars or more the penalty for the offense is the same under the present Code as it Avas under the Code of 1886. There Avas clearly no right of election afforded to the defendant in this case and, therefore, no error committed by the trial court.
The judgment must be affirmed,