¶1delivered the opinion of the court.
¶2There 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.
¶3*803But, 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.
¶4Affirmed.