Black v. State

On March 16, 1909, an indictment was returned in the District Court of Ellis County, charging appellant with unlawfully and wilfully failing and refusing to keep up certain stock and with unlawfully permitting same to run at large, after the qualified voters of Ellis County had determined at an election held in accordance with the laws of said State, that such stock should not be permitted to run at large in said county, and after the returns of said election had been opened, tabulated and counted by the county judge of said county in the presence of the county clerk thereof, and one justice of the peace thereof, and after it had been ascertained that a majority of the votes cast at said election were for the stock law, and after the county judge had issued his proclamation declaring the result of said election to be in favor of the stock law, and which said proclamation had been posted at the court-house door of said county, and after the expiration of the thirty days from the issuance of the proclamation aforesaid. At a trial had in the County Court of Ellis County, on December 8, 1909, appellant was found guilty as charged and his punishment assessed at a fine of five dollars. From this judgment an appeal is sought to be prosecuted to this court, and briefs have been filed on appellant's behalf presenting a number of questions as grounds of reversal. However, our Assistant Attorney-General has filed a motion to dismiss the appeal on the ground that the recognizance given by appellant is insufficient to confer jurisdiction upon this court. An examination of this recognizance shows that it was entered into in the sum of $450, "conditioned that the said Lee Black, who stands charged in this court with the offense of violating Stock Law, and who has been convicted of said offense in this court, shall appear before this court from day to day and from term to term of the same, and not depart without leave of this court, in order to abide the judgment of the Court of Criminal Appeals of the State of Texas in this case."

It is urged that since violating the Stock Law is not eo nomine an offense, that this recitation is not equivalent to a recitation that defendant stands charged with and is convicted of a misdemeanor. In the case of Parish v. State, 47 Tex. Crim. 148, it was held that a recognizance must allege that the appellant was convicted of a misdemeanor or eo nomine set out the offense, and that an allegation in the recognizance that the appellant has been convicted for violating the local option law is insufficient. Judge Henderson there says: "We have held that said article which authorizes the recital of a misdemeanor, instead of naming the offense, where it was one eo nomine, or describing it where it was not, may still be complied with, by naming the offense where it is one eo nomine by statute or describing the offense according to the statute." In support of the decision in that case he refers to the case of Hannon v. State, 45 Tex.Crim. Rep., 7 Texas Ct. Rep., 969. In that case the recognizance alleged that the appellant was charged with the offense of pursuing an occupation without license. This, it was said, is not the offense named in the information and prescribed by statute. The information charges that the appellant did unlawfully engage in, follow and pursue the occupation of peddling cook stoves and ranges, an occupation then and there made taxable by law. This was held to be insufficient. In the case of Mitchell v. State, 44 Tex.Crim. Rep., 7 Texas Ct. Rep., 71, Mitchell had been convicted of selling liquor to a minor. The recognizance in that case was to the effect that appellant "stands charged in this court with the offense of knowingly selling intoxicating liquor to a minor under 21 years of age, and who has been convicted of said offense." It will be observed that this was rather a more particular description of the offense of which Mitchell was convicted than is the description of the offense here. In passing on that matter Judge Brooks says: "It will be observed that it (the recognizance) does not state the sale was made to a minor ``without the written consent of the parent or guardian, or some one standing in their stead.' This is a requisite ingredient of this offense." See Shackelford v. State, 22 S.W. 26; McDaniel v. State,20 S.W. 1108. These decisions, it seems to me, lay down a strict rule touching the matter — indeed, rather more strict than I should have been inclined, as an original question, to think either to be needed or appropriate; but it has frequently been followed, and the rule now laid down is so well settled that it would probably be unwise to change same, even if such change was authorized by a proper construction of our statute.

For the reason that the recognizance is defective and insufficient to give this court jurisdiction, it is ordered that the appeal be and the same is hereby dismissed.

Dismissed.

ON REHEARING. March 8, 1911.