40 S.W. 984 | Tex. Crim. App. | 1897
Appellant was convicted of driving cattle across the quarantine line established by the Live Stock Sanitary Commission.
The Assistant Attorney-General moves to dismiss this appeal, because the recognizance recites no offense against the laws of the State, and does not recite the offense charged in the information. The recognizance recites that the appellants "stands charged in this court with the offense of unlawfully violating, disregarding, and evading the rules, regulations, *43 orders, and directions of the Live Stock Sanitary Commission of Texas, establishing and governing the live stock quarantine in Texas," etc. It seems, under the provisions of the law, that, in order to constitute this offense, said sanitary commission must make its rules, orders, regulations, and directions, and, before they can be operative, the governor must be notified of such rules, regulations, orders, and directions, and must issue his proclamation, putting them into operation, or giving notice of the same. It will then be observed that, before there can be a violation of these enactments of the Legislature, the Live Stock Sanitary Commission must make its rules, regulations, orders, and directions, and the Governor must issue his proclamation, after being notified by said commission of the creation of these rules, regulations, orders, and directions; otherwise, there can be no offense, because there are no inhibitions. In order to charge this offense, the indictment or information must show and allege that these matters have occurred. This offense not being one eo nomine, the constituent elements of the offense must be set out in the recognizance in order to make that a valid instrument. The statute requires that the recognizance must describe some offense against the law, and it must be the offense of which the accused is convicted. The recognizance in this case does not undertake to set out two essential elements of this offense, to wit, the fact that the sanitary commission had made its orders, rules, regulations, and directions, and that the Governor has issued his proclamation thereupon; and, because the recognizance is fatally defective in the matter pointed out, the appeal herein is dismissed. See Acts 1893, pp. 70, 73, secs. 3, 13, 15.
Dismissed.
[NOTE. — Appellant's motion for rehearing filed June 23, 1897, was overruled without a written opinion. — Reporter.]