¶1The treaty of 1819 between the United States and Spain, which fixed the Bio Boxo of Nachitoches, or Bed Biver, as one of the boundaries between the two nations, is silent as to which bank of said stream should constitute the boundary; which silence is of controlling significance when considered in connection with another provision in said treaty, fixing the Sabine Biver as a part of the western boundary of the former nation. With reference to the last-named river, it was stipulated that the line should begin at the mouth of the Sabine, in the sea, “ continuing north along the western bank of that river; ” but with reference to Bed Biver as a part of the boundary, it was stipulated that the line, after striking that stream, should follow its course westward to *470the degree of longitude 100 west from London and 23 from Washington. 8 Stats, at Large, 254-256. The general rule, therefore, that the mere designation of a river as a boundary, in the absence of further description, means the channel or middle of the stream, must obtain, and it must be held that the jurisdiction of Texas extends "at least to the middle of Red River. Handly v. Anthony, 5 Wheat. 374; McFall v. The Commonwealth, 2 Metc. 394; Myers v. Perry, 1 La. An. 372; Mahler v. Transportation Co., 35 N. Y. 352; Morgan v. Reading, 3 Smed. & M. 366; The State v. Dunnell, 3 R. I. 127; The People v. Wilson, 3 Park. Cr. 199. The same rule might obtain by reason of the uncertainty which may attend the respective dates of occupation by two separate nations of the territory on either bank of Red River. Vattel's L. N. 120.
¶2In the charge of the court the jury were instructed to acquit in case they should find that, at the time the liquors were sold, the boat of defendant was north of the centre of said river. They found to a contrary effect, and we are not prepared to say that' such finding was without evidence to support it.
¶3The charge of the court was not excepted to on trial, and in the absence of such action every presumption is usually indulged in favor of its correctness and applicability. This rule, however, does not apply in case the court misdirects the jury as to the penalty of an offence. Allen v. The State, 7 Texas Ct. App. 298; Haynes v. The State, 2 Texas Ct. App. 84. The exact penalty in prosecutions of this character not being fixed by general law, but susceptible of variation according to the discretion of County Commissioners’ Courts, and special legislation pertaining to different counties, it is matter of proof before the jury, and it is incumbent upon the prosecution to allege and prove the exact levy. It is true, the court is required to instruct the jury as to the law of the case, and the law fixes the penalty for pursuing a taxable occupation without paying the license-*471tax, at not less than the amount of such tax and not more than double that sum ; but without evidence as to the ■amount levied in the particular county, the jury are furnished no basis for an intelligent finding. The levy of a county occupation-tax is not deemed by us a matter of judicial knowledge, and we are of opinion that the practice above indicated is the safer rule to prescribe.
¶4Because it is not made to appear to us that the proper penalty for the offence was found by the jury, the judgment is reversed and the cause remanded
¶5 Reversed and remanded.