
    Leo Brown v. The State.
    No. 3859.
    Decided February 6, 1907.
    Sodomy—Charge of Court—Penalty—Reformatory.
    Upon a trial for sodomy, a charge of the court that if the jury found defendant was under 16 years of age to assess his punishment at confinement in the penitentiary- for not less than two years nor more than five years, was reversible error. See opinion as to reformatory.
    Appeal from the District Court of Mills. Tried below before the Hon. J. E. Dilliard.
    Appeal from a conviction of sodomy-; penalty, two years confinement in the reformatory.
    The opinion states the case.
    Ho brief on file for appellant.
    
      F. J. McCord, Assistant Attorney-General, for the State.
   HENDERSON, Judge.

Appellant was convicted of sodomy, and his punishment assessed at two years confinement in the reformatory.

There is but one question that we need consider. The court charged the punishment for sodomy to be by confinement in the penitentiary for not less than five years nor more than fifteen years, and then instructed the jury if they found appellant guilty, and that he was under 16 years of age, to assess his punishment at confinement in the penitentiary for not less than two years nor more than five years. This charge was erroneous. The punishment charged by the court, and which was inflicted by the jury, of two years, is not authorized in a sodomy case. The court should have instructed the jury that if they found appellant guilty, and that he was 16 years of age, or under, and they assessed his punishment at five years in the penitentiary, they might in their discretion confine him in the reformatory instead of the penitentiary. For this error in the court’s charge, and the assessment of the penalty thereunder of two years, the judgment is reversed and the cause remanded.

Reversed and remanded.  