
    SMITH v. STATE.
    (No. 8162.)
    (Court of Criminal Appeals of Texas.
    April 2, 1924.)
    Criminal law 172(9) — Instruction'permitting penalty greater than allowed by statute, followed by greater verdict, reversible error.
    Instruction permitting jury to assess penalty for playing .a game of cards in a public place, greater than that permitted by Pen. Code, art. 548, followed by verdict of a penalty greater than permitted thereby, is reversible error.
    other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from-Ochiltree County Court; J. M. Grigsby, Judge.
    Lee Smith' was convicted for playing at a game of cards in a public place, and he appeals.
    Beversed and remanded.
    Hoover, Hoover & Willis, of Canadian, and J. W. Payne and Allen & Allen, all of Perry-ton, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

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 $50.

This would appear to be a companion ease of Bryan v. State (No. 8131) 260 S. W. 846, opinion handed down March 26, 1924. The prosecution was under article 548 of our Penal Code, punishment for a violation of which is fixed by statute at a fine of not less than $10 nor more than $25. The trial court instructed the jury that they might assess a punishm'ent of not less than $10 nor more than $50, 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 case of Bryan v. State, supra. There are other errors complained of which will probably not occur upon another trial of thé case and a discussion of which' is preter-mitted.

Eor the error mentioned, the judgment will be reversed, and the cause remanded.  