Upon original submission appellant invoked the benefit of Art. 13, P. C., which, in substance, is that when by the provisions of a subsequent law the prior punishment for an offense is ameliorated, an accused should be punished under the subsequent law unless he elect to receive the penalty prescribed by the law in force when the offense was committed. Because the Act of the Regular Session, Fortieth Legislature, Chap. 274, made the minimum punishment for murder two years' imprisonment, appellant insisted that he should have had the benefit of this ameliorated punishment. In our original opinion we stated that appellant's contention would be sound but for the fact that the Special Session of the Fortieth Legislature, Chap. 8, amended Sec. 3a of Chap. 274 of the Regular Session so that no offense committed prior to taking effect of Chap. 274 should be affected thereby. In his motion for rehearing appellant insists that the Act of the Special Session referred to was an amendment of Art. 13 of the Penal Code, and that as said article was not referred to in said Special Session Act, it was violative of Secs. 35 and 36 of Art. 3 of the Constitution, by reason of which Art. 13 was still in force, and that appellant was entitled to its benefits regardless of Chap. 8, Act of the Special Session, Fortieth Legislature. The said latter Act can in no respect be regarded as an amendment to, nor as an attempt to amend, Art. 13 of the P. C. Said Special Session Act was designed to prevent the operation of Art. 13 in prosecutions for murder when the offense occurred *Page 609 before Chap. 274 of the Regular Session, Fortieth Legislature, became effective. Art. 13, P. C., remains unchanged and unimpaired and would be applicable where no saving clause intervened. We have had occasion to construe the effect of Chap. 8 of the Special Session upon Chap. 274 of the Regular Session in O'Pyle v. State, 298 S.W. 596, and in Flores v. State, 4 2d C. W. 43.
The motion for rehearing is overruled.
Overruled.