¶1The defendants were charged with the crime of larceny of $50, and were tried before a jury of 5, which found Harison Evans guilty of embezzlement and Harison Wliley not guilty. A motion in arrest, filed by Harison Evans, was sustained, and the state has appealed.
¶2The gist of the motion in arrest is that embezzlement, being a felony necessarily punishable at hard labor, is triable by a jury of 12, and not by a jury of 5, under article 116 of the Constitution of 1898.
¶3The state contends that, where larceny is charged in a bill of information a verdict of guilty of embezzlement may be returned, and that by virtue of section 7, Act No. 107, p. .162, Acts 1902, the embezzlement of property of a less value than $20 is made a misde-' meanor.
¶4This court, in State v. Dalcourt, 112 La. 420, 36 South. 479, held that the law cited was unconstitutional in so far as it attempted to grade felonies.
¶5It follows that the jury of five was without jurisdiction in the premises, and that the sentence was properly arrested.
¶6The judgment sustaining the motion in arrest is therefore affirmed.