Bennett v. State , 26 Tex. Ct. App. 671 ( 1886 )

White, Presiding Judge.

Article 411 of the Penal Code provides that, “If any person liable under the law to work upon the public roads shall wilfully fail or refuse to attend either in person or by substitute at the time and place designated by the road overseer of his district or precinct, after being legally summoned; or shall fail, on or before the day for which he is summoned to attend, to pay to such overseer the sum of one dollar per day for each day he may have been notified to work on the road; or, having attended, shall fail to perform any duty required of him by law and such overseer, he shall be fined in any sum not exceeding ten dollars.”

In the case before us an information was preferred by the county attorney based upon this statute, charging in one count its violation by five different parties. The information is fatally defective in failing to allege affirmatively and specially that the parties charged were “liable under the law to work upon the public roads.” Such allegation is essential to be made, because essential to be proven. If not liable to road duty, then it is manifest that a party should not be punished for failing and refusing to do such duty. (Willson’s Crim. Forms, No. 287, pp. 133, 134.)

With a view to the probabilities of another prosecution, we-would suggest the propriety of instituting separate prosecutions against these defendants. “Several offenders in some cases may be included in the same indictment for different offenses of the same kind, the word separately being inserted, which renders it several as to each of them; though, it is said the court will in its discretion quash the indictment if any material inconvenience appear to arise from preferring the charge in that mode.” (Lewellen v. The State, 18 Texas, 538, citing Whart. Am. Crim. Law, 156; Precedents, p. 5 and notes.) Mr. Bishop says, speaking of the authority of a court to quash an indictment for improper joinder, “And it will have a proper regard to its own convenience and the due administration of public justice.” (1 Bish. Crim. Proc., 3 ed., sec. 453.) Again he says: “We have seen how the courts avail themselves of this power to prevent an improper joinder of offenses and offenders.” And so, says Chitty, “Where six persons were jointly and severally charged with exercising a trade without having served an apprenticeship, the indictment was quashed as altogether vicious.” (Id., sec. 773.) The various defenses interposed in this case give a good illustration of the inconvenience incident to such pleading.

Opinion delivered May 19, 1886.

Because the information is fatally defective in the matter first pointed out above, the judgment is reversed and the prosecution dismissed.

Reversed and dismissed„