
    REDDING v. STATE.
    (No. 11485.)
    Court of Criminal Appeals of Texas.
    April 4, 1928.
    State’s Rehearing Denied May 16, 1928.
    1. Criminal law <@=>1023(9) — Sentence in felony case is prerequisite to appellate jurisdiction of Court of Criminal Appeals.
    On conviction for felony, sentence is prerequisite to appellate jurisdiction of Court of Criminal Appeals.
    2. Criminal law <@=>27 — Same act cannot be both felony and misdemeanor.
    An act cannot be both a felony and a misdemeanor, nor determined by one jury to be a felony and by another jury to be a misdemeanor.
    3. Statutes <@=>107(3) — Statute making unlawful taking of chicken or turkey a “felony or misdemeanor” held invalid as combining incongruous elements in one act (Acts 39th Leg. [1926] c. 15, First Called Sess.; Const, art. 3, § 35).
    Acts 39th Deg. (1926) c. 15, First Called Sess., entitled “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,” held invalid as combining incongruous enactments in one statute, in violation of Const, art. 3, § 35, requiring an act to embrace but one subject, expressed in its title.
    4. Criminal law <@=>27 — Stealing chickens or turkeys is felony, notwithstanding punishment imposed by jury is fine and imprisonment in county jail (Pen. Code 1925, arts. 47, 1410-1436).
    ' Under Pen. Code 1925, arts. 1410-1436, making the unlawful taking of chickens an offense whose punishment depends on value of property taken, and article 47, declaring every offense a felony which may be punished by confinement in the penitentiary, the stealing of chickens or turkeys is a felony, notwithstanding jury imposes punishment by fine and imprisonment in county jail.'
    5. Criminal law <@=>-13 — Statute relating to theft of chickens or turkeys held invalid for failing to create offense and to fix punishment (Acts 39th Leg. [1926] c. 15, § I, First Called Sess.)
    Acts 39th Leg. (1926) c. 15, § 1, First Called Sess., providing that “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 two hundred dollars, or by imprisonment in jail not to exceed one hundred days, or by-such fine and imprisonment,” held invalid as creating no offense, and fixing no punishment by fine or jail sentence.
    6. Criminal law <@=vl3 — Men whose offenses have not been written in plain and intelligible language should not be adjudged felons.
    Men whose offenses have not been written in plain and intelligible language should not be adjudged felons.
    Appeal from District Court, Franklin County ; R. T. Wilkinson, Judge.
    Dick Redding was convicted for the theft of chickens, and he appeals. On motion to dismiss appeal.
    Motion denied, judgment reversed, and cause dismissed.
    M. D. Carlock, of Winnsboro, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE J.

Conviction for theft of chickens; punishment, a fine of $50 and 10 days in the county jail.

The state’s attorney with this court movés to dismiss this appeal because the record contains no sentence, and, this being a felony, a sentence would be a prerequisite to the jurisdiction of this court. If this be a felony, be is correct. We are thus called upon to decide the question, and are forced to admit tliat tlie answer is in doubt. Chapter 15, Acts of First Called Session of Thirty-Ninth Legislature, contains the law, if any there be, making the theft of chickens a felony. The caption of the act contained in said chapter 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 is thus declared that the offense which is to be created by, and found in, the body of the act is “a felony or a misdemeanor.” Nothing later on or further sheds light on the inquiry above raised. Manifestly the act denounced cannot be both a felony and a misdemeanor. If this is true, the caption of the bill in question is not -in compliance with the commands of section 35, art. 3, of our Constitution. Joy v. City of Terrell (Tex. Civ. App.) 138 S. W. 215. Whatever the scope of the act, it can embrace but one subject, which must be expressed in the title to the act. Singleton v. State, 53 Tex. Cr. R. 626, 111 S. W. 736. The subject of the act under consideration, as expressed in its title, is to make the taking of a chicken or a turkey “a felony or a misdemeanor.” As said in Albrecht v. State, 8 Tex. App. 216, 34 Am. Rep. 737, and Nichols v. State, 32 Tex. Cr. R. 403, 23 S. W. 680, one object of section 35, art. 3, of our Constitution is to prevent the combination of incongruous enactments in a statute. The attempted making of a single act, viz. the taking of a chicken or a turkey, a felony or a misdemeanor, would be the combining of incongruous enactments. So this title is in direct violation of the Constitution.

If it was the purpose of the Legislature to so frame the bill as that a jury in one section of the state might by its verdict declare the taking of a chicken a felony, and that another jury elsewhere might declare the taking of a chicken, a misdemeanor, this would be wholly wrong and violative of all the authorities. Nor might two juries in the same jurisdiction divide on the question, one deciding the act to be a felony, and the other a misdemeanor. The taking of a chicken, if an offense eo nomine, must everywhere in Texas be either a felony or it must everywhere be a misdemeanor. 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. 8,1925 P. C. We are apprehensive that the trial court in this case, because the jury only gave appellant punishment by fine and imprisonment in the county jail, was thus led to conclude this a misdemeanor conviction. Such is not the law. Article 47, 1925 P. C., which is, in substance, the same as old article 55, Vernon’s 1916 P. O., distinctly declares every offense a felony which may he punished by confinement in the penitentiary. We thus see that the act of taking a chicken, or a turkey cannot be either a misdemeanor or a felony, but under said statute must be a felony.

In this connection we also call attention to section 1 of said chapter 15, supra, which 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 two hundred dollars, or by imprisonment in jail not to exceed one hundred days, or by such fine and imprisonment.”

Omitting the clause, “shall be confined in the penitentiary not less than one year nor more than two years,” and reading said section 1 as it would be with this clause omitted, the following would appear: “Whoever shall steal any chicken or turkey, * * * or by fine not to exceed two hundred dollars.” That language such as this creates no offense and fixes no punishment by fine or jail sentence is too plain to call for analysis. The act therefore creates no offense, and fixes thereto no punishment. Necessary words and phrases were omitted from the act in its framing. Men should not be adjudged felons whose offenses have not been written in plain and intelligible language. We are constrained to hold the act not in compliance with constitutional requirments because of the defective caption and body of the bill.

The judgment will be reversed, and the cause ordered dismissed.

On State’s Motion for Rehearing.

HAWICINS, J.

We have carefully examined the state’s motion for rehearing and the authorities therein relied upon. We regret to ¡have reached the conclusion that none of them in our judgment saves the law under consideration from the defects pointed out in our original opinion.

The motion for rehearing is overruled. 
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