King v. State , 74 Tex. Crim. 658 ( 1914 )

Appellant in his motion for rehearing contends that we did not understand all of his grounds for contending that the information charged no offense, and he says that the law under which he was prosecuted provides for three separate and distinct offenses. The law under which appellant was prosecuted was adopted in 1905, and is section 70 of chapter 124, which section reads as follows: "That it shall be unlawful for any person or persons to loiter or loaf upon any public school grounds in this State during the session of such school after being warned by the person in charge of such school to leave such grounds, and such person or persons so found shall be guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not less than five dollars and not to exceed twenty-five dollars." This is the only offense defined by that section of the Act, and appellant is in error in contending that at the time of the passage of the Act the section defining this offense also defined two other offenses. Other sections of the Act did define other offenses but the section defining this offense undertook to define no other offense. And the only question is, was the title of the Act broad and comprehensive enough to embrace the provisions of this section of the Act? The Act in question provided for a complete system of public free schools in Texas, and the first subdivision of the title reads: "An Act to provide for a more efficient system of public free schools for the State of Texas," and then follows a very lengthy title. Section 35 of article 3 of the Constitution does not provide that only one offense can be defined in a law, but the bill shall embrace but one subject, and the "subject" of this Act was the public free school system, and the provisions of section 70 of the Act hereinbefore recited are germane to that subject, and the whole purpose of the law. Joliff v. State,53 Tex. Crim. 61; Ex parte Abrams, 56 Tex.Crim. Rep.; Singleton v. State, 53 Tex.Crim. Rep.; Fahey v. State, 27 Texas Crim. App., 146; Brown v. State, 57 Tex.Crim. Rep..

Appellant also contends that the information is defective because "therein it is not alleged in what way or manner appellant caused the minor to commit the offense." This was a matter of proof, and it is never necessary to allege the evidence. When it was alleged that he caused the minor to commit the offense, it was required to prove that fact, but it was not necessary to allege the way he caused or instigated it to be done.

The evidence in this case amply proves that appellant knowingly caused the minor to commit the offense, as is shown by the evidence copied in the original opinion. He knew his boy had been expelled from school, and Pennal testified that appellant said he was going to send his boy back to school, and that he was goingto stay there; that he would show the trustees they could not run things. This evidenced that he not only knew his boy had been expelled, but the trustees had forbid his return to the school, yet he caused the boy to go back to the school and remain there over the protest of the teacher, It seems to take the law to teach appellant "that he and he alone could not run things around there" over the protest of the teacher and the trustees. The word "instigate" is defined in Century Dictionary to mean, "To stimulate to action or cause, made to do something, urge; to stir up; foment; bring about by persuasion or incitement, as to instigate a crime." Appellant not only urged his boy, according to the testimony for the State, but he required him to go to the school, and, as appellant said to the officer, he and not the boy was the one to arrest. The construction contended for by appellant that the statute only covers grounds outside of that on which the building stands is hardly tenable. The language is broad and comprehensive enough to cover acts done inside of the building on the grounds, as well as on the grounds outside of the building. To say he could be prosecuted for loitering on the grounds outside of the building, but if he goes inside and loiters there, interfering with the orderly conduct of the school, he would not violate the law, would give the statute an absurd and unreasonable construction.

The motion for rehearing is overruled.

Overruled.