¶1When this case was before this court on a former occasion it was reversed, for the reason that there was but little evidence against the accused, and as much testimony given to show a voluntary return of the property alleged to have been stolen, and before any prosecution was commenced; which seems to have been totally misunderstood by the district judge, to the effect that this court had held that under the proofs the judgment must be reversed, that the case was held to be a misdemeanor, and that the jurisdiction to try it belonged to the County Court. The case was decided upon the proofs adduced on a former *93trial; but the decision had nothing whatever to do with the evidence to be adduced on a second trial.
¶2If an offense sounding in felony should, on the proofs, be but a misdemeanor, this would not oust the District Court of jurisdiction. The action of the court in transferring the case, and the theory upon which the case was finally tried in the District Court, having resulted beneficially to the accused, he ought not to be heard to complain; and whilst we are of opinion that the charge should have been more explicit on the vital point of the case, yet, because the charge was not excepted to at the trial, nor additional instructions asked by the counsel for the accused, the case having been tried as a misdemeanor, we are not authorized to review the charge.
¶3There being no sufficient cause shown by the record for disturbing the conviction, the judgment is affirmed.
¶4Affirmed.