
    BUSEY v. STATE.
    (No. 5685.)
    (Court of Criminal Appeals of Texas.
    Feb. 25, 1920.)
    1. Larceny &wkey;>88 — Imposition of fine ALONE FOE MISDEMEANOR THEFT IS REVERSIBLE ERROR.
    In a prosecution for the theft of 10 bushels of pears, the imposition of a fine of $10 was reversible error, as Vernon’s Ann. Pen. Code 1916, art. 1341, does not authorize punishment by fine alone for misdemeanor theft.
    2. Larceny &wkey;>l — Prosecution for taking FRUIT FROM ANOTHER’S ORCHARD MUST BE UNDER THE STATUTE.
    Where the information charged defendant with the theft of 10 bushels of pears, and the facts and testimony showed that he gathered them from the orchard of the prosecuting witness, the prosecution should be had under Vernon’s Ann. Pen. Code 1916, art. 1234, in terms making such act punishable.
    Appeal from Harris County Court, at Law; Walter E. Monteith, Judge.
    Tom Busey was convicted of misdemeanor theft, and fined, and he brings error.
    Reversed, and cause remanded.
    Geo. S. King, of Houston, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted

in the county court at law No. 1 of Harris county, under a complaint and information, charging him in the regular form with theft of 10 bushels of pears, and his punishment was fixed at a fine of $10. The case was tried before the court without the intervention of a jury.

Our law does not authorize punishment by fine alone for misdemeanor theft, and the case will have to be reversed for the illegal punishment. See article 1341, Vernon’s Penal Code.

Inasmuch as the case must be sent back to the court a quo, we call attention to article 1234 of Vernon’s Penal Code, which makes punishable the taking or carrying away of fruit from the orchard of another, and under which article this prosecution must be had; the facts and testimony in the instant case showing that appellant gathered from the orchard of prosecuting witness the pears in question.

For the error mentioned, the judgment is reversed, and the cause remanded.  