Cook v. State

77 Miss. 800

Opinion

Teerax, J.,

delivered the opinion of the court.

There is no authority for the position that when a statute makes an act a crime, and renders the person doing such act punishable either by imprisonment in the penitentiary or by a' fine or confinement in the county jail, that such act is a felony, *and wherever charged should be charged as a felony, and that the discretion reposed in the judge of inflicting a less penalty than imprisonment in the penitentiary, does not lessen the grade of the offense. Bishop’s New Grim. Law, sec. 619, and authorities cited.

But, however this may be, the conviction of the defendant before the justice of the peace of petit larceny under a charge of unlawfully altering the mark of a hog, was erroneous. Larceny is not included in such charge, and his conviction and punishment by the justice -of the peace was a nullity, and being a nullity, it could not constitute a bar to an indictment in a court which had exclusive jurisdiction of the crime.

Affirmed.