Bradburn, Smith Bashan, for appellant. — The court erred in striking out defendant's plea of former conviction, said plea being sufficient, and showing that defendant had been once legally tried and convicted in a court of competent jurisdiction, upon the identical offense herein charged. The city council of the city of Vernon had authority and power to pass the ordinance in question, and the mayor had jurisdiction under and by virtue thereof to try the defendant for a violation of the same. At the time defendant was tried in said Mayor's Court there was an ordinance of the city of Vernon in force making it an offense for any person within the limits of the city to carry on or about his person any pistol, knuckles made of hard substance, etc., and prescribing a penalty of not less than $25 nor more than $100, and imprisonment, within the discretion of the mayor, not exceeding fifteen days. Sufficiency of plea of former conviction. Code Crim. Proc., art. 525; Williams v. The State, 13 Texas Ct. App. 285[ 13 Tex. Crim. 285 ]; Heffner v. The State, 16 Texas Ct. App. 573[ 16 Tex. Crim. 573 ]. Jurisdiction of Mayor's Court: Sayles' Civ. Stats., arts. 361, 381, 418; Ex Parte Boland, 11 Texas Ct. App. 159[ 11 Tex. Crim. 159 ]; Davis v. The State, 2 Texas Ct. App. 425[ 2 Tex. Crim. 425 ]; Craddock v. The State, 18 Texas Ct. App. 567[ 18 Tex. Crim. 567 ]; Flood v. The State, 19 Texas Ct. App. 584[ 19 Tex. Crim. 584 ]. The jurisdiction of a justice of the peace is fixed by the Constitution; that of mayors and recorders is statutory. Mayors and recorders of towns and cities incorporated under title 17, chapters 1 to 10, Sayles' Civil Statutes, not only have the same jurisdiction as a justice of the peace, but such other and additional jurisdiction as is conferred upon them by statute. The fact that justices of the peace have no jurisdiction to try offenses where the punishment is imprisonment in the county jail, furnishes no reason why a mayor or recorder of a city of Vernon's class could not try the same kind of an offense. For the jurisdiction of a justice of the peace is fixed by the Constitution, and that of mayors is not. As a test of the jurisdiction of justices of the peace, we look to the Constitution; for that of mayors and recorders, we must look to the law under which the city or town in which they hold office is incorporated. The Legislature of the State, by articles 418, 381, and 361, clearly confers upon the city council of all such cities as Vernon the right to prohibit the carrying arms, and gives the mayor or recorder of such towns jurisdiction to try those who violate the same. If the Legislature has conferred upon mayors and recorders greater jurisdiction than that of justices of the peace, it had a right to do so, because the Constitution is silent on the subject. The County Court is the only court, as the law now stands, that can take cognizance of such misdemeanors as this, except mayors and recorders of towns and cities, under title 17, chapters 1 to 10, Sayles' Civil Statutes, acting under an ordinance of the city. But the jurisdiction of the County Court is not exclusive, and can be entirely abolished by the Legislature, as has been done in numerous instances; and why could the Legislature not take away the exclusive right of the County Court to try this grade of offenses, and confer it upon mayors and recorders? The county attorney did contend in his motion to strike out that the ordinance in question was invalid because it prescribes a less penalty than the State law on the same subject, but only says that the mayor had no jurisdiction of the offense; and if the mayor did have jurisdiction, then his motion should have been overruled. We think, in view of the above authorities, there can be no question of that fact. And assuming that the Mayor's Court did have jurisdiction, then the court erred in striking out for any reason defendant's plea of former conviction. If not, why not? All that is necessary, under article 525 of the Code of Criminal Procedure, is that defendant has been before convicted, legally, in a court of competent jurisdiction upon the same accusation, after having been tried upon the merits for the same offense. Not that he has been tried in a court wherein the penalty for the offense was the same, but in a court of competent jurisdiction for the same offense. R.L. Henry, Assistant Attorney-General, for the State, filed the following brief, which as will be seen hereafter was adopted by the court as the opinion in this case: There is but one question to be considered in this case: Can a city incorporated under the general law of this State pass an ordinance providing a less penalty for an offense than the penalty imposed by the penal statutes for the same offense against the State laws? On the 14th day of September, 1891, appellant was tried and convicted in the Mayor's Court of the city of Vernon for \carrying on and about his person knuckles made of a hard substance

Davidson.

\" in violation of an ordinance of said city against carrying arms