State v. Garcia , 38 Tex. 543 ( 1873 )

McAdoo, J.

—This case is brought to this court by appeal from a judgment of the District Court, quashing the indictment. The indictment charged the appellee with unlawfully purchasing two hides taken from certain dead animals, not the property of the person from whom they were purchased. This indictment was found under the act of twenty-second of March, 1871, “An Act to encourage stock raising, and for the protection of stock raisers.” (G-eneral Laws of 1871, 1st Ses., 117.)

The appellee moved to quash the indictment, which was sustained by the court, and the district attorney appealed to this court.

The bill of exceptions shows that the indictment was quashed because the act of May 22, 1871, is not amendatory of the Criminal Code, but provides another mode of procedure by qui tarn, action to recover penalties. These rulings of the court below are assigned as error.

We think the first ground of assignment of error is well taken. While the 1st Section of the code declares that “the design in enacting this code is to define, in plain language, every offense against the laws of this State, and to affix to each offense its proper punishment,” we do not conceive that it was the intention of the Legislature, for all time to come, that all penal enactments should be necessarily appended to the code as amendments to it. Indeed, the 3rd Section of the code (Article 1605, Paschal’s Digest) seems to exclude this idea in its terms. It reads as follows: “In order that the system of penal law in force in this State may be complete within itself, and that no system of foreign laws, written or unwritten, may be appealed to, it is declared that no person shall be punished for any act or omission as a penal offense unless the same is expressly defined and the penalty affixed by the written law of this State.”

It was held in Cain v. The State, 20 Texas, 358, that the act of February 2, 1856, passed at the same session as the Penal Code, was not repealed by the code, though it was made no part of it. A conviction was also sustained in Brown v. The State, 20 Texas, 336, under the statute.

We hold that every enactment of the Legislature which defines, in plain language, an offense, and clearly affixes to such offense its proper jkvnishment, must be regarded as a valid penal law, whether the act have any reference to the code or not. The other ground assigned as error by the District Court for the quashing the indictment is of a graver character — that the act of May 22,1871, does not contemplate a trial by an indictment, but by a qui tarn action. Indeed, it is very difficult to perceive what mode of proceeding was intended by the Legislature to be adopted in the prosecution of the ofíense created by that act.

The whole act is somewhat incongruous. The 16th Section of the act, the one under which the indictment in this case was evidently framed, assesses a punishment of ten dollars fine “for each and every hide so skinned or purchased, recoverable as provided in Section 8 of this act, said fine to be paid into the county treasury.”

Section 8, which provides for another branch of violations of this statute, makes the fine “ recoverable before the District Court, or any justice of the peace having jurisdiction.” It also provides: “One-half of the fine

shall be paid to the informer, and the other half shall be paid into the county treasury.”

In a penal action such as that contemplated in the 8th Section, the action cannot be by indictment, as the informer is entitled to one-half of the fine, and he must be a party to the action; this he cannot be where the trial is by indictment.

Proceedings should be upon the relation of the informer ; in other words, it should be a qui tarn action prosecuted for the uses expressed in the statute, and not an action by indictment presented by a grand jury.

As the mode for enforcing the penalty under the 16th Section is to be the same as that provided for in the 8th Section, though no reason appears therefor, the offense charged in this cause cannot be prosecuted by indictment.

The indictment therefore was properly quashed, and the judgment of the District Court is affirmed.

Afeibmed.