Johnson v. State , 126 Tex. Crim. 466 ( 1934 )

Conviction for chicken theft; punishment, a fine of ten dollars.

Appellant raises many questions, and has prepared and presents a brief showing labor and effort.

He directs complaint at the statute under which this prosecution is had. See Chap. 108, Acts 41st Legislature, Regular Session. Said statute penalizes him who steals chickens, turkeys, etc. Art. 1425 of our Penal Code, 1925, makes the word "Steal" to mean and include theft of property mentioned in such connection.

Complaint is made of the fact that the offense involved is punishable by imprisonment in the penitentiary, also by imprisonment in the county jail, and also by fine, and it is insisted that this fact makes the law invalid. Art. 47, P. C. provides that every offense which may — not must — be punishable by confinement in the penitentiary, is a felony, and we do not think the fact that there are alternative punishments which might have been deemed properly affixed to misdemeanor offenses, would prevent this case from being a felony. Examination of the Acts of the 41st Legislature, above referred to, makes plain the fact that by same the taking of any chicken or turkey was specifically made a felony. There is no doubt of the authority and power of the legislature to select any kind of property and make the taking of that property a felony, and in such case it is not necessary to allege the value of the property so taken. See Arts. 1420-1423 P. C., 1925. In his brief appellant cites the case of Hasley v. State,94 S.W. 899, as supporting his contention that the indictment is bad because no value is therein assigned to the chickens alleged to have been taken. When the opinion in said case was written there was no statute in this State making the theft of chickens per se a felony, hence the holding. Not so now.

We do not think the enactment set out in Chap. 108, supra, is unconstitutional. The reasons advanced by this court in Redding v. State, 6 S.W.2d 361, for holding the statute there involved unconstitutional, are not found in the present case. The law there involved was one which made the act of taking any chicken both a felony and a misdemeanor. In the law of the case before us the taking of any chicken, turkey, etc., is made only a felony. We have carefully examined all of the authorities cited by appellant in his brief. We find nothing in Sec. 35 of Art. 3, or Sec. 10 of Art. 1 of our Constitution which is in anywise transgressed by the statute here attacked and involved.

Finding no error in the record, the judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.