
    BILLINGS v. STATE.
    (No. 7137.)
    (Court of Criminal Appeals of Texas.
    Nov. 22, 1922.)
    1. Animals <&wkey;38 — Penal Code, punishing cruelty, not repealed.
    Acts 1913 c. 88, § 1 (Vernon’s^ Ann. Pen. Code 1916, art. 1231), penalizing cruelty to animals, does not repeal Pen. Code 1911, art. 1231, penalizing willful and wanton killing of animals.
    2. Animals <&wkey;45 — Information held to charge offense of killing dog.
    An information that accused did “willfully and wantonly kill one domesticated animal, to wit, one dog,” held to charge an offense under Pen: Code 1911, art. 1231.
    3. Criminal law <&wkey;>M77 — Mistake in penalty imposed must injure accused, in order to work reversal.
    In order to work a reversal, a mistake in the penalty imposed must result in injury to accused. ■ '
    4. Criminal law <&wkey;>l68 — Judgment entered assessing lower penalty than provided by statute bars further prosecution.
    A judgment entered, though assessing a lower penalty than provided by statute, will avail defendant as a bar to another prosecution.
    djc^For other cases-see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes
    Appeal from Tarrant County Court, at Law; P. W. Seward, Judge.
    Charles M. Billings was convicted of unlawfully killing a dog, and he appeals.
    Affirmed.
    H. S. Lattimore, of Fort Worth, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The appellant was convicted of linlawfully killing a dog; punish-iment fixed at a fine of $1. The charging part of the information reads thus:

“ * * * That Charles M. Billings * * * heretofore, on the 28th, day of March, A. D. 1922, in the county of Tarrant and state aforesaid, did then and there willfully and wantonly kill one domesticated animal, to wit, one dog.”

The sufficiency of the, information is as-sailéd; appellant insisting that it cannot be sustained under article 1230 of the Penal Code, because there is no averment that the animal was killed with the intent to injure the owner, and that, inasmuch as it uses the terms “willfully and wantonly,” instead of “needlessly,” itvdoes not charge the offense described in article 1231 of Vernon’s Texas Crim. Stat, yol. 1, p. 752. In both of these particulars the appellant may be right, but there-is found in the Penal Code of 1911 article 1231, which reads thus:

‘•‘If any person shall willfully or wantonly kill, maim, wound, disfigure, poison or cruelly and unmercifully beat or abuse any horse, ass, mule, cattle, sheep, goat, swine, dog or other domesticated animal, or any domesticated bird, he shall be fined not less than five nor more than one hundred dollars.”

The assumption that this article was superseded by article 1231 as copied in Vernon’s Texas Crim. Statutes, supra, we think, is not sustained. The • article in Vernon’s Statutes is section 1 of chapter 88, Acts of 1913. That chapter makes no reference to the article quoted from the Penal Code of 1911; it does not purport to amend that article nor to repeal it; nor is it in conflict with it, in our. judgment, so as to bring about its repeal by implication.

The complaint and information charges an offense under article 1231 of the Penal Code of 1911 and the conviction must be referred to that law.

The only fault that we discern in the judgment is that the punishment is less than the minimum- fixed by the article mentioned. Formerly a mistake in the penalty as given in the charge of the court to the jury vitiated the judgment. White’s Texas Code of Crim. Proe. p. 538, § 819, and cases therein listed. ,A change in the statute resulted in a modification of the rule, so that, to work a reversal, the mistake in the penalty must be such as would result in an injury to the accused. Manning v. State, 46 Tex. Cr. R. 328, 81 S. W. 957, 3 Ann. Cas. 867; Grider v. State, 82 Tex. Cr. R. 125, 198 S. W. 579; Thompson v. State (Tex. Cr. App.) 237 S.W. 928.

The appellant was charged by proper complaint and information in a court of competent jurisdiction, and upon a trial regularly had was convicted of the offense denounced, by article 1231 of the Penal Code of 1911. He has not complained of the fact that the penalty was too low, either in the court below or here, and we are inclined to the opinion that, the error committed being manifestly in his favor, it is one of which he cannot take advantage. The judgment entered would avail him as a bar to another prosecution. Beasley v. State, 84 Tex. Cr. R. 491, 208 S. W. 538.

We regard the affirmance of the judgment the proper disposition of the appeal; and it is so ordered.  