Bruns Kunkel v. State , 33 Tex. Crim. 415 ( 1894 )

SIMKINS, Judge.

Appellants were convicted of failing to make a report of animals butchered by them to the May Term of the Commissioners Court, and fined in the sum of $50 each.

Appellants complain that the court erred in excluding from the jury a report of the cattle butchered by them from May to August 1st. The report was evidently made out for the August Term. Upon it was indorsed, in the handwriting of one of the commissioners, the words, “Examined and ordered filed.” But it is not shown when the indorsement was made. It was sworn and subscribed to on the 14th of November, 1892. It was not shown or claimed that the jurat was a mistake. But the November report was sworn to the same day, and also indorsed by the same commissioner. Nor does appellant or the county clerk state that the jurat was subsequently placed as an amendment to the report. Indeed, the minutes of the August Term show no such, filing, and the recollections of the commissioners themselves, refreshed by the minutes, tend to confirm the same fact. Now, article 4565 of the Revised Civil Statutes declares, that every butcher shall make, under oath, a regular report to each regular meeting of the Commissioners Court, which shall be recorded by the clerk, etc.; and it clearly appears appellants could not have made their report under oath, as required by law, prior to November 14, 1892, and thereby became liable to the penalty denounced in Penal Code, article 756, and the court did not err in excluding the report. Had it been shown that the report was in fact filed and approved at the August Term, and was sworn to nunc pro tunc at the November Term, a different case would have been presented. But appellants make no such case. In fact, they are not positive at what term they made their report. The court having correctly excluded the offered report, there was no defense in the case.

The judgment is affirmed.

Affirmed.

Judges all present and concurring.