Bush v. State

• Decision Date: 31 October 1923
• Docket Number: (No. 7861.)
• Citation: 260 S.W. 574
• Parties: BUSH v. STATE.
• Court: Texas Court of Criminal Appeals

260 S.W. 574

BUSH v. STATE.

(No. 7861.)

Court of Criminal Appeals of Texas.

October 31, 1923.

Rehearing Granted April 2, 1924.

Appeal from Liberty County Court; C. R. Wilson, Judge.

A. E. Bush was convicted of carrying on a business injurious to the health of those residing in the vicinity, and he appeals. Reversed, and prosecution dismissed.

Howth & O'Fiel, Lamar Hart, and John T. Kitching, all of Beaumont, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

HAWKINS, J.

Conviction is for carrying on a trade and business injurious to the health of those residing in its vicinity. Punishment was assessed at a fine of $10.

Appellant undertakes to confer jurisdiction upon this court by presenting a purported bond, which does not comply in any particular with the requirements of articles 918 and 919 of Vernon's Code of Criminal Procedure. It is approved only by the clerk of the court, whereas the statute requires that in misdemeanor cases it be approved either by the sheriff or the judge. Furthermore, it has no semblance of meeting the requirements of the form of bond provided in article 919. The only condition stated in it is that appellant —

"will not carry on the trade, business, or occupation of raising hogs at or in the neighborhood of the Partlow settlement in small pens in the city of Liberty, Texas, or any other place in said county in small pens to the detriment of the health of the neighborhood."

The state's motion to dismiss the appeal because no jurisdiction is conferred upon this court by the purported bond must be sustained.

The appeal is accordingly dismissed.

On Rehearing.

At a former day the appeal was dismissed because of a defective appeal bond. It is now made to appear that by inadvertence the clerk carried forward into the record for this court the wrong bond, and the one now before us is in compliance with the statute. The appeal is reinstated and will be considered on its merits.

Article 694 of our Penal Code reads as follows:

"If any person shall carry on any trade, business or occupation injurious to the health of those who reside in the vicinity, or shall suffer any substance which has that effect to remain on premises in his possession, he shall be punished by fine not less than ten nor more than one hundred dollars; and each separate day of carrying on such business, trade or occupation, or of permitting such substance to remain on the premises, shall be considered a separate offense."

Appellant was convicted under the foregoing statute. The information is in two counts: The first charges that appellant did "carry on a trade and business, to wit, the raising of hogs; such trade and business being injurious to the health of those who resided in the vicinity," where such trade and business was conducted. The second count charged that appellant did "suffer and permit a substance to...