The defendant was indicted for stealing and taking and carrying away seven chickens, of the value of $2. The case was tried before a jury of five. They found the accused guilty as charged.
The trial judge sentenced him to the penitentiary for a period of two years. Prom the verdict and sentence the defendant prosecutes this appeal.
On appeal the Attorney General, averring that no sentence of imprisonment in the penitentiary can be imposed in a case of petit larceny of property of a less value than $5, under section 5 of Act No. 107, p. 162, of 1902, moved the court to set aside the sentence, and asked that the district judge be directed to sentence the defendant, George Williams, according to law; that is, to a term of imprisonment in the jail of the parish, not exceeding 60 days, and not less than 10 days, under section 5 of Act No. 107, p. 162, of 1902. We will say, in general terms, that, for all useful purposes, it may be held that all crimes are felonies and misdemeanors. The former include more, serious offenses, and consequently more severe punishment. Misdemeanor includes an offense less serious, and usually punished by fine or imprisonment or both.
Mr. McClain, in his work on Criminal Law, § 18, says that “in most of the states the statutes expressly provide a definition for the term ‘felony,’ and make it to mean an offense punishable with death or confinement in the penitentiary.”
This reference has no direct bearing. It only shows that common consent in many of the states have treated the word “felony” as referring to a crime punishable by hard.labor in the penitentiary.
Here, from any point of view, the offense does not fall within the category of crimes which cannot be graded as misdemeanors. The punishment is limited to imprisonment, as before mentioned.
Act No. 107, p. 161, of 1902, is constitutional to the extent that there can be no question that the offense must be considered in its nature a misdemeanor. It cannot be considered anything else in this case. State of Louisiana v. Eubanks, 114 La. 428, 38 South. 407.
The motion is granted.
It is ordered, adjudged, and decreed that the sentence imposed is annulled and avoided. This case is remanded, with direction that the defendant be sentenced in accordance with the views herein expressed, and according to law.