50 S.W. 949 | Tex. Crim. App. | 1899
Appellant was convicted of forgery, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.
In the view we take of this case, it is only necessary to consider appellant's motion to quash the indictment, the first ground of which is "that the indictment charges no offense against the law." The facts, as stated in the indictment, show that appellant, after having enumerated the ages of the three children of Matea Harper de Knott, and as having been born in the years of 1892, 1895, and 1896, altered the dates of their birth so as to make it appear that they were born in 1885, 1888, and 1890, and thereby created a pecuniary obligation of the State of Texas and the city of Laredo, and to the census trustee of said city. Article 3964, Revised Statutes, as amended by General Laws, Called Session Twenty-fifth Legislature (1897), page 44, reads: "The scholastic census of each school district of this State shall be taken in the year 1898, and every year thereafter. The county superintendent of public instruction shall, on the first day of January of each year, or as soon as practical thereafter, appoint one of the trustees of each school district, or some other qualified person, to take said census, who shall be known as the census trustee of the district. It shall be the duty of the census trustee to take, between the first day of May and the first day of June after his appointment, a census of all the children that will be over eight and under seventeen years of age on the first day of the following September, and who are residents of the school district on said first day of May; and to make report under oath," etc. The indictment shows that the city of Laredo was a school district, and that appellant took the census of the children of Matea Harper de Knott on the 25th day of April, 1898. The law above quoted, governing school districts, states very explicitly that the census trustee must take the same "between the first day of May and the first day of June." Therefore it follows that appellant took the census at a date not authorized under the law. And by another clause it is provided that the census trustee must enumerate all the children "who are residents of the school district on said first day of May." This clause of the statute makes it obligatory upon the census trustee not to commence his enumeration until that date; for how could he enumerate children that are residents of the district on the 1st day of May, when he commenced his enumeration on the 25th day of April. It is true, an inspection of another clause of the article quoted above indicates that the enumeration may commence on the 1st day of January, instead of May; but a casual inspection of this clause discloses the fact that it has sole and exclusive reference to the census of community counties, and does not apply to school districts or *460 independent districts. It follows, therefore, that appellant's contention that the indictment charges no offense against the laws of the State of Texas is correct.
The second ground of appellant's motion is "because the indictment is repugnant." We think this objection is also well taken. We find that appellant, if he took the census of the children of Matea Harper de Knott, subscribed and swore her to the same as "census trustee or subcensus trustee." There is no such office authorized under the law as a "subcensus trustee." Therefore, having stated that he was "census trustee or subcensus trustee," the allegations are repugnant, and in the alternative, and we are unable to tell in what capacity the indictment charged or sought to hold appellant.
Appellant's sixth objection to the indictment is "because, if the instrument had been made alone by the person whose act it is alleged to be, there is no allegation showing that such person had power or authority to appoint or create an obligation against the State of Texas." This objection, also, is tenable. We have examined the indictment carefully, and it nowhere states how, or in what manner, or by whom, appellant was appointed or authorized to take the census. The indictment is fatally defective in these particulars, and the judgment is reversed, and the prosecution ordered dismissed.
Reversed and dismissed.
