Emberline v. State, 212 S.W. 952

Emberline v. State

212 S.W. 952 | Tex. Crim. App. | 1919

LATTIMOBE, J.

In this case appellant was convicted in the county court of Palo Pinto county, Tex., of a violation of the tick eradication statute (Acts 35th Leg. c. 60), and his punishment fixed at a fine of $25, and he appeals.

[1] The Assistant Attorney General moves to strike out the statement of facts prepared by the stenographer, because the same is not incorporated in the transcript, and also because the same consists of questions and answers. The last objection is unquestionably good, and said motion is sustained. However, there appears in the transcript what purports to be a statement of facts in narrative form, properly approved and filed, which we will consider.

[2] Appellant moves to quash the complaint and information for various reasons. While unnecessarily long and containing matters which are surplusage, we are of opinion that said pleading sufficiently charged a violation of the law. The act being recent and there being no form laid down, we take the liberty of suggesting that if it be substantially charged that the election was legal and held in a certain county to determine whether said county should take up and prosecute the work of tick éradication therein, at which election a majority of the legal votes cast were in favor thereof, and thereafter said law was put in effect in the manner and form prescribed by statute, and thereafter, to wit, on the-day of-19 — , in said county and state, one A. B. —: was the owner and caretaker of certain domestic animals, to wit) -, and did fail and refuse to dip said animals after being directed in writing so ,to do by the live stock sanitary commission of Texas, at a time and manner set out in said written direction, against the peace and dignity of the state; that this is substantially a sufficient allegation where the charge .is a failure to dip, and same can be changed to meet any other form of violation of said statute.

[3] The county judge should not have been permitted to orally testify to the fact of the publication of the result of the election unless such character of proof was found to be necessary by reason of the loss or destruction of the certificate of such fact, provided for by section 7 of the act (Vernon’s Ann. Civ. St. 'Supp. 1918, art. 7314e). Said section specially provides that such certificate shall be admissible in evidence in the courts.

[4] Appellant complains of the admission in evidence of what purported to be a supplemental proclamation of the- Governor, declaring Palo Pinto county under tick quarantine. If the objection had been, because said document was not a copy certified by the secretary of state, as prescribed by section 9 of said act (article 7314g), same would have been good, but we observe from appellant’s bill of exception thereto it was because it did not appear that said proclamation had been published in any newspaper, which objection was not tenable.

[5] No order, or copy of any order, issued by the live stock • sanitary commission directing that appellant should dip his cattle at any time or manner, appears in the record. In the'McGee Case, 81 Tex. Or. R. 210, 194 iS. W. 951, this court held it could not take judicial -cognizance of such orders. Appellant objected to the testimony of Sheriff Abernathy as to what was in the order he had received from said commission, because the order was the best evidence and the objection should have been sustained, unless it was made to appear that the order was lost or destroyed.

[6] It was not necessary that the cattle of appellant should be actually infected with ticks in order to make them subject to the law and to the requirement of the commission that they be dipped. The requirements apply to all cattle within the specific quarantine zone.

[7] Nor do we think the appellant could refuse to obey the law because free dipping vats had not been provided by the county. Section 3 of the act, providing for treatment *954at the expense of the county, applies only to certain forms of diseases therein named. The presumption will obtain until rebutted' that the commission would refuse to order the cattle of any citizen dipped at any vat where an exorbitant charge was attempted. The law is intended for the betterment of the people, and not an instrument of oppression. No complaint was made of the small amount charged for dipping in the instant ease.

[8] We cannot agree with appellant that the law is unreasonable because, as he puts it in his brief, it deprives “the old honey cow of the pleasure of rubbing oft the ticks on his neighbor’s ‘fiancé,’ and then, after being deprived of these privileges, the poor old hard-shell preacher was deprived of his milk and butter for several days after each dipping.”

For the errors above mentioned, the judgment of the lower court is reversed, and the cause remanded.

tgs^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes'

tfteoFor other cases see same topic and KEY -NUMBER in all Key-Numbered Digests and Indexes