
    Lee Smith v. The State.
    No. 8162.
    Decided April 2, 1924.
    Gaming — Playing Cards — Fundamental Error — Penalty.
    Where the trial court instructed the jury, in a prosecution under article 548 Penal Code charging playing at a game of cards in a public place, punishment for a violation of which is fixed by statute at a fine of not less than ten or more than twenty-five dollars, that they might assess a punishment of not less than ten nor more than fifty dollars, and the verdict fixed the penalty at the latter amount, this was fundamental error, and the judgment must be reversed and the cause remanded. Following: Bryan v. State, recently decided.
    Appeal from the County Court of Ochiltree. Tried below before the Honorable J. M. Grigsby.
    Appeal from a conviction of playing at a game of cards in a public place'; penalty, a fine of fifty dollars.
    The opinion states the case.
    
      Hoover, Hoover & Willis, and J. W. Payne, and Allen & Allen, for appellant.
    
      Tom Garrard, Attorney for the State, and Grover C. Morris, Assistant Attorney for the State.
   LATTIMORE, Judge.

Appellant was convicted in the County Court of Ochiltree County of the offense of playing at a game of cards in a public place, and his punishment fixed at a fine of fifty dollars.

This would appear to be a companion case of Bryan v. State, No. 8131, opinion handed down March 26, 1924. The prosecution ivas under Article 548 of our Penal Code, punishment for a violation of which is fixed by statute at a fine of not less than ten nor more than twenty-five dollars. The trial court instructed the jury that they might assess a punishment of not less than den nor more than fifty dollars, and the verdict fixed the penalty at the latter amount. This has been universally held to be a fundamental error. See authorities cited in the ease of Bryan v. State, supra. There are other errors complained of which will probably not occur upon another trial of the case and a discussion of which is pretermitted.

For the error mentioned the judgment will be reversed and the cause remanded.

Reversed and remanded.  