Crane v. State (84 S.W.2d 722, 1935)

CHRISTIAN, Judge.

The offense is unlawfully selling squirrels ; the punishment, a fine of $25.

The prosecution proceeded under article 884, P. C., which reads in part as follows: “It shall be unlawful for any person to sell or offer for sale * * * any * * * wild game animal, dead or alive,

or any part thereof, protected by this chapter, except as hereinafter provided. This article, and all other articles in this chapter, shall apply to any * * * animal coming from without this State; and in prosecutions for violations of this chapter it shall be no defense that such * * * animal was not taken or killed within this State.”

We quote the charging part of the complaint as follows: “Charles Crane on or about the 26th day of October, A. D. 1934, and before the making and filing of this complaint, in the county of Angelina and state aforesaid, did then and there unlawfully sell and offer for sale to C. H. Doak wild game, to-wit squirrels.”

The information follows the complaint.

Article 892, P. C., reads as follows: “Wild deer, wild elk, wild antelope, wild Rocky Mountain sheep, wild black bear, and wild gray and red squirrels, cat squirrels or fox squirrels, are hereby declared to be game animals within the meaning of this Act.”

We quote from Webster’s International Dictionary as follows: “Among the common North American squirrels are the gray squirrel * * * and its black variety; the fox or cat squirrel * * * which is a large species and variable in color, the southern variety being frequently black, while the northern and western varieties are usually gray or rusty brown; the red squirrel * * * ; the striped, or chipping, squirrel * * *; and the California gray squirrel. Several other species inhabit Mexico and Central America. * * * ”

Appellant insists that the complaint and information are fundamentally defective in failing to specify the kind of squirrels alleged to have been sold. We think this contention should be sustained, as it appears that there are several species not enumerated in article 892, supra. Under the express terms of article 884, supra, the sale, etc., of wild game animals is restricted to such animals as are protected by chapter 6 of title 13, P. C. (article 871 et seq.). As to squirrels, said chapter protects wild gray and red squirrels, and cat squirrels or fox squirrels. Article 892, supra. It follows that the general allegation that the game animals sold consisted of squirrels is insufficient.

The judgment is 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.