
    WILLIAMS v. STATE.
    (No. 11765.)
    Court of Criminal Appeals of Texas.
    May 2, 1928.
    Larceny <3=^2 — Statute making it “felony or misdemeanor” to unlawfully take chicken or turkey, being invalid, he/d not to repeal general theft) statute (Acts 39th Leg. [1926] c. 15, § I, First Called Sees.; Pen. Code 1925, arts. 1410-1436).
    Acts 39th Leg. 1926, c. 15, § 1, First Called Session, making it a “felony or misdemeanor” to unlawfully take any chicken or turkey, being invalid under the Constitution because containing incongruous enactments, did not have the effect of repealing the general felony theft statute contained in Pen. Code 1928, arts. 14] 6-1436, or of ameliorating the punishment as claimed by accused, and court did not err in charging the punishment prescribed by Pen. Code, art. 1421.
    Commissioners’ Decision.
    Appeal from District Court, Robertson County; W. C. Davis, Judge.
    B. W. Williams was convicted of stealing 15 head of turkeys of the value of $50, and he appeals.
    Affirmed.
    Cates & Swanger, of Huntsville, for appellant.
    J. G. Lyles, Co. Atty., and T. L. Tyson, both of Franklin, and A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Appellant was indicted for the theft of 15 head of turkeys of' the value of $50; his punishment was assessed at confinement in the penitentiary for 2 years. .

This prosecution was , under the general felony theft statute as embraced in title 17, c. 8, Penal Code 1925.

Section 1 of chapter 15, General Laws of the State of Texas, passed at. the First Called Session of the Thirty-Ninth Legislature, is as follows:

“Whoever shall steal any chicken or turkey, shall' be’ confined in the penitentiary not less than one year nor more than two years, or by fine not to exceed $200.00, or 'by imprisonment in jail not to exceed 100 days, or by such fine and imprisonment.”

Appellant insists that the above act of the Thirty-Ninth Legislature impliedly repealed the felony theft statute as applied to the theft of any chicken or turkey, and that this offense is governed by the terms of said last-mentioned act, and, if mistaken in this, that the punishment for the theft of turkeys having been ameliorated by the aforesaid act, the court erred in charging the punishment prescribed by article 1421, P. C. 1925. The title of the act in question is as follows:

“An act making it unlawful for the fraudulent taking of any chicken or turkey, making such offense a felony or a misdemeanor, prescribing punishment therefor; and declaring an emergency.”

It was expressly decided in the recent case of Redding v. State, No. 11485, 6 S. W.(2d) 360, opinion delivered April 4, 1928, not yet officially reported, that the aforesaid act of the Legislature was invalid, in that its title, quoted above, was in direct violation of the Constitution. It was said in the Redding Case, supra:

“The attempted making of a single aet, viz., the taking of a chicken or a turkey, a felony or a misdemeanor, would be the combining of incongruous enactments.”

It was further said:

“We have in Texas, wholly aside from this act, a theft statute which makes the taking of chickens, etc., an. offense whose punishment depends on the value of the property taken.” See title 17, c. 8, P. C. 1925.”

The language of the opinion in the Redding Case, supra, is a sufficient answer to all of appellant’s contentions. The quoted part of the said act of the Thirty-Ninth Legislature, at its First Called Session, relied on by appellant as taking the instant case out of the general felony theft statute, being wholly invalid, could not have the effect, either of repealing the statute under which this prosecution was instituted or of ameliorating the punishment, as claimed by appellant.

This is the only question briefed by appellant or apparently relied on by him for a reversal, and, there being no merit in same, the judgment is affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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