Rainbolt v. State (13 S.W.2d 861, 1929)

MARTIN, J.

Upon a reconsideration of tbe record, we have concluded that tbe information and complaint shown in tbe transcript is insufficient to charge an offense under the law.

Omitting tbe formal parts, tbe information is as follows: “Will Rainbolt was then and there tbe manager and lessor of a shooting preserve and of premises leased for bunting purposes, to-wit: Tbe Scale’s Ranch in said County, and did then and there as such manager and lessor, for pay unlawfully accommodate and permit certain guests and persons, to-wit: R. D. Hunt and C. W. Hamman to bunt with a gun on said shooting preserve and said premises, in said Kaufman County, Texas, tbe said R. D. Hunt and tbe said C. W. Hamman being then and there residents of Dallas County, Texas, and who bad not previously secured a bunting license, as required by law.”

We presume tbe prosecution was under article 908 of tbe Penal Code (1925). That part of said article applicable to tbe ease here is as follows: “Any manager of any club, shooting resort, shooting preserve, or premises leased for bunting purposes, who accommodates hunters for reward, without first having secured tbe necessary license as provided in' this article, or failing to comply with all tbe provisions thereof, shall be deemed guilty of a misdemeanor and upon conviction shall be fined tbe sum of not less than one hundred ($100.00) dollars, nor more than two hundred ($200.00) dollars, or by imprisonment in the county jail for not more than ninety (90) days, or by both such fine and imprisonment.”

Other language in said article is “that no guest will be accommodated who has not previously secured a bunting license.” This appears, however, to refer to an affidavit to be filed with tbe game, fish, and oyster commissioner. The article is lengthy and not altogether plain, but we are not able to gather from its language- tbe meaning which seems to have been placed on it by the trial court. In other words, the requirement of a license applies to the owner of the shooting preserve and not to the hunter. The specific . act charged against appellant in the information does not appear to be inhibited by the Penal Code. This exact point seems not to have been urged by appellant, either originally or on motion for rehearing. Our former opinion dealt only with questions raised in the record, hut a more careful reading of the statute has convinced us that appellant was convicted of an offense unknown to the law, and that same presents fundamental error.

Our former opinion accordingly is withdrawn, motion for rehearing is granted, judgment of the trial court reversed, and the prosecution ordered dismissed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.