majority">Donley, J.

The question involved in this cause was *161determined at the last term of the court at Galveston. [The State v. Wilson, 29 Tex., 240.] The cause determined there was of a party who was indicted for the murder of a slave by whipping.

The court, after giving in charge the law applicable to the offense alleged, at the request of the attorney representing the State, charged the jury, that if they found the defendant not guilty of murder as charged, they might find him guilty of cruelty to a slave, and impose on him a pecuniary fine as a punishment for the offense. Under this charge the jury found the defendant not guilty of the offense alleged in the indictment, but guilty of cruelty to a slave, and assessed a fine against him for the offense.

It was held by this court in that cause, that it was not competent, on the trial of an indictment for murder, to find the defendant not guilty of murder, but guilty of cruel treatment to a slave, and punish by imposing upon him a pecuniary fine.

The indictment in. this cause appears to have been regarded by the court below as an indictment upon which the defendant might be convicted of murder.

The law upon the question was given in charge by the court as fully as deemed necessary by the court for a correct comprehension of the question by the jury, and the verdict of the jury, finding the defendant guilty of cruel "treatment to the slave, was in effect a verdict of not guilty of the alleged murder. It is held, in Jones v. The State, 13 Tex., 168, That when an indictment embraces two offenses of different grades, a conviction of the inferior offense is an acquittal of the higher, and upon a new trial the defendant cannot be tried and convicted of the higher offense.” The defendant has not been convicted of an inferior degree of the offense alleged, if it may be held that the offense alleged is murder.

Article 631 Code of Criminal Procedure provides that, 11 The following offenses include different degrees: 1. Mur*162der, which includes all the lesser degrees of culpable homi-' eide.” And it was held, in the case just referred to, that if an illegal act was done, by which the life of a person lately a slave was wrongfully taken, it was not competent to punish the person thus illegally and wrongfully taking the life of a slave by convicting him of a misdemeanor, and punish by imposing upon him a pecuniary fine. That if the life of a human being is wrongfully taken, and the circumstances under which it was taken were such that it must be held that the law has been violated and crime committed, the offender is guilty of a felony, and if punished it must be for the crime he has committed; that a conviction and punishment for a misdemeanor is no bar to a prosecution for murder. If the indictment is sufficient to have authorized a conviction for murder or any degree of culpable homicide, his trial, on that indictment, must discharge him, and he cannot legally again be put in peril for the same offense. (Art. I, sec. 12, Const. of the State of Texas.)

The judgment is reversed, and the cause

Dismissed.

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