Johnson v. State

Appellant was convicted in the County Court of Aransas County of violating the stock law, and his punishment fixed at a fine of $5.

The overruling of his motion to quash the information was made the subject of a bill of exceptions by appellant. We think the description of the subdivision of Aransas county, in which it was alleged that the running at large of appellant's hogs was forbidden, was sufficient both in the petition for the election and in the various orders of the Commissioners Court relating to the matter. Said subdivision was described as Live Oak Peninsula, bounded on the East by Red Fish and Aransas Bays; on the North by Aransas and Copano Bays; on the West by Copano and Puerto Bays, and on the South by the line between the counties of San Patricio and Aransas. It is insisted that this description fails to meet the requirements of Article 7211, Vernon's Complete Texas Statutes, 1920, wherein it is said, speaking of the description which must appear in regard to a subdivision of a county wherein such stock law election is held, "such subdivision shall be particularly described and the boundaries thereof designated." As indicated above, we think this a sufficiently particular description and are unable to appreciate the force or application of the authorities cited bearing on questions pertaining to high, low or mean tides. It is clear that when such election is ordered for a county, it is sufficient to name the county, and the location of the county lines are matters with knowledge of which every citizen is chargeable. It could hardly be contended that as to coastal counties, there could be a strip of land technically called shore, between high and low tides, which would not be included in a countywide election held in such county. Nor do we think there is need for more particular calls for boundaries, than by reference to the bays on our coast lines, which are apparently fixed and well defined as natural objects can be. It is a familiar rule that calls for natural objects will control mere calls for metes and bounds when in conflict, and there appearing no contention of the fact that the bays named as boundaries in the proceedings in the instant case, are not well known and established bodies of water, there is nothing in the contention. Ince, et al., v. Barber, et al., No. 6793, decided in Fourth Court of Civil Appeals on April 5, 1922.

The information further alleges that within ten days after the election and after the managers of such election had made their returns to the county judge of Aransas County, the Commissioners Court of said county in session opened said returns, counted and tabulated the votes and found that 112 of same were for, and 97 of said votes were against, said stock law, etc. Part of appellant's complaint in his motion to quash is directed at this portion of the information. It was formerly the law that the returns in such election should be counted tabulated by the county judge alone, and it was provided in former Article 7220, Revised Civil Statutes, that the opening, counting and tabulating by said county judge, should be in the presence of the county clerk and at least one justice of the peace, or two responsible freeholders of the county. This last mentioned article was amended in 1919 by Chapter 59 of the General Laws, Second Called Session of the thirty-sixth Legislature, which provided that the returns for such election should be opened, tabulated and counted by the Commissioners Court of the county in the same manner as provided for general elections in the State. Section 2 of said amendatory act practically obviates the raising of any question in regard to irregularities in such returns, which are based on the failure of any ministerial officer to perform any duty required of him. In our opinion the information in the instant case charging the counting and tabulating of the returns to have been by the Commissioners Court, was not subject to the criticism directed at same.

The information alleges that on February 14, 1921, the Commissioners Court ordered the election in question to be held on March 22, 1921. We do not think the language of said information in reference to this matter, susceptible of the construction that the order of the county judge in obedience to that of the Commissioners Court, ordered the election for the same day as the date of said order.

Objection to the introduction of the order of the Commissioners Court upon the petition for election, on the ground of variance between the description of the subdivision therein, and said description in the information, is not well founded. The only variance appears to be that the word "southern" is in the order, which is not in the information, and this does not seem to us to materially affect the matter.

We find nothing in the statute governing the holding of an election of this character which makes its validity dependent upon any order of the Commissioners Court declaring the result of such election, and hence are of opinion that the order of said court offered in evidence by the State, declaring that the stock law had been carried in the entire county, was regarding a matter not material for the State to not have proved, and was of no injury to the appellant. There is no allegation in the information in reference to such order of the Commissioners Court. The only duty imposed upon the Commissioners Court by statute is that set out in amended Article 7220, supra, which directs said court shall open, tabulate and count the returns. Article 7221 requires the county judge to immediately issue his proclamation declaring the result of such election, and it is not claimed here that such proclamation failed to follow in its description of the subdivision in question, the petition and preliminary orders made with reference thereto. In said proclamation the subdivision is described as in the information herein, except that the word "southern" also appears therein. Said proclamation further contains the following statement:

"Whereas, the undersigned county judge of Aransas County, Texas, has tabulated and counted said returns and ascertained the result of said election in the manner prescribed by law, and has found that the majority of the votes cast at such election were `For the Stock Law.'

Now, therefore, I, Joe A. Harper, County Judge of Aransas County, Texas, do hereby issue this my proclamation, declaring that such election resulted in favor of said proposition; and I order and direct that this proclamation shall be posted at the Court House of this County, and after the expiration of thirty days from its issuance, it shall be unlawful to permit to run at large, within the limits designated herein, any of the animals hereinbefore mentioned."

There having been no sufficient legal attack upon any of the steps taken in order to put into effect in said subdivision, the stock law which forbade the running at large of hogs, etc., — it was not erroneous for the trial court to assume in the charge that said law was in effect in said subdivision. Williams v. State, 37 Tex. Crim. 238; Cantwell v. State, 47 Tex.Crim. Rep.; Roberson v. State, 91 S.W. Rep., 578; Ellis v. State, 59 Tex. Crim. 630; Moreno v. State, 64 Tex.Crim. Rep.; Creed v. State, 69 Tex.Crim. Rep., 155 S.W. Rep., 240.

This disposing of the contentions made by appellant, and finding ourselves unable to agree with any of same, an affirmance is ordered.

Affirmed.

ON REHEARING. October 18, 1922.