Galloway v. State , 125 Tex. Crim. 524 ( 1933 )

Appellant has filed a motion for rehearing evidencing much research and care on the part of his counsel, but we find ourselves unable to agree with the propositions advanced. It appears to be conceded in the motion that the offense of appellant, if any, was a misdemeanor.

The jurisdictions of the state courts of Texas are defined in various sections of our Constitution. Original jurisdiction of felony cases is alone in district courts. See section 8, article 5 of our Constitution, which by express provision also confers on such courts original jurisdiction of misdemeanors involving official misconduct, but makes no mention of jurisdiction over any other misdemeanor cases than those involved in said exception. Section 16, article 5, of the Constitution confers original jurisdiction of all misdemeanor cases of which justice courts are not by law given exclusive jurisdiction, and whose fines may exceed two hundred dollars, — upon county courts. This constitutional provision is also embodied in article 56, C. C. P. Section 17 of said article of the Constitution states that prosecutions in county courts may be begun by affidavit or information, as may be provided by law. Articles 413, 414 and 415, C. C. P., by enactment of our Legislature provide for procedure for beginning prosecutions in the county courts by affidavit and information, as was done in the case before us.

We have again reviewed the record in the light of appellant's motion, and his renewed insistence that the forfeiture of his hunting license and the consequent deprivation of his right to get a new license, or to hunt without one, would necessarily be part of and involved in the punishment inflicted, pursuant to conviction herein, and that as a result of such fact, it would be necessary that he be proceeded against by indictment, — which he claims to be a logical inference from the terms of section 10, article 1, of our Constitution. We can not agree that the plain provisions of the Constitution above set out, relative to procedure in cases of prosecution in county courts, can be overridden by what at most is but a somewhat intangible inference arising from the language of said section 10, supra. While the trial court in this case, for reasons best known to himself, saw fit to incorporate in his judgment a statement that the right of the defendant to hunt with a gun in this state, be and the same is hereby forfeited for one year from this date, — we observe that no such issue was submitted in the charge to the jury, nor passed upon by the verdict of the jury, and in our opinion such statement in the judgment was clearly ultra vires and of no effect, and we so hold, and reform the judgment accordingly. Article 893, P. C., specifically provides that a conviction for violating any of the game laws of this state automatically forfeits the license of such party for such hunting season, and forbids that such party shall get from the state any license to hunt for one year next following the date of such conviction. It follows that the license of appellant to hunt was, or is forfeited by final conviction herein, and no need exists for the attempted insertion, as a part of the judgment herein, of any declaration that appellant's license is hereby declared void or his right to hunt forfeited. We note that said article 893 specifically penalizes him who has been so convicted, who within said year thereafter purchases or is found in possession of a hunting license issued by the state, or who hunts with a gun in this state within such year, — it being apparent that such provision has reference to a new and different offense from the one here charged against appellant, and for which he has been convicted.

Being unable to agree with appellant's contention, his motion for rehearing will be overruled.

Overruled.