
    No. 5378.
    J. C. Ford v. The State.
    1. Exhibiting Gaming Bank—Charge op the Court on a trial for exhibiting a gaming bank authorized and exacted confinement in jail as part of the penalty to be assessed by a verdict of guilty. Held, that in so far as the confinement in jail was concerned, the charge was erroneous.
    
      Opinion delivered June 11, 1887.
    2. The Unconstitutionaiity of the Act of March 19, 1885, does not affect the validity of Article 358 of the Penal Code, under which this prosecution should have been maintained.
    Appeal from the County Court of Bosque. Tried below before the Hon. R. Gr. Childress, County Judge.
    The opinion states the nature of the case. The penalty assessed was a fine of twenty-five dollars and ten days in the county jail.
    Ho appearance for the appellant.
    
      W. L. Davidson, Assistant Attorney General, for the State.
   Hurt, Judge.

This is a conviction for keeping and exhibiting, for the purpose of gaming, a gaming table and bank.

The court instructed the jury, in substance, that, if they found the defendant guilty, they should assess his punishment by fine not less than twenty-five nor more than one hundred dollars, and by imprisonment not less than five nor more than twenty days. The penalty, so far as the imprisonment is concerned, is not correct. (Hunt v. The State, 22 Texas Ct. App., 396.)

The Act of March 19, 1885, is unconstitutional, but this does not affect the validity of Article 358 of Penal Code, under which this case should have been tried.

The judgment is reversed and the cause remanded.

Reversed and remanded.  