Ex Parte Ballard

• Decision Date: 09 June 1920
• Docket Number: (No. 5694.)
• Parties: Ex parte BALLARD.
• Court: Texas Court of Criminal Appeals

Page 222

223 S.W. 222

Ex parte BALLARD.

(No. 5694.)

Court of Criminal Appeals of Texas.

June 9, 1920.

Original application for writ of habeas corpus by E. F. Ballard. Relator discharged.

Baskett & De Lee, of Dallas, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Relator was convicted in the county court of Ellis county, and seeks relief here, by writ of habeas corpus, from what he claims to be a void judgment. It is plain that such must appear to be the character of the judgment before we would entertain an attack upon it by such a writ.

The charge in the trial court was by complaint and information, the charging part of which is as follows:

"That one J. A. Ramsey and one E. F. Ballard, and each of them, did, on or about the 1st day of October, 1918, and before the making and filing of this information, in the county of Ellis, state of Texas, unlawfully and willfully fail and refuse to file with the state superintendent of public instruction of the state of Texas the annual report in duplicate of the receipts and disbursements of the school funds of the Ovilla independent school district of Ellis county, Tex., for the preceding school year ending August 31, 1918, on the prescribed form furnished to said J. A. Ramsey and E. F. Ballard, and each of them, during August, 1918, said J. A. Ramsey then and there being the president and said E. F. Ballard then and there being the cashier each of the Farmers' & Merchants' Bank of Ovilla, the said Farmers' & Merchants' Bank of Ovilla having theretofore been made the legal depository of said Ovilla independent school district of Ellis county, Tex., the said report having been required by law to be made by said Farmers' & Merchants' Bank of Ovilla as depository for school funds of said Ovilla independent school district of Ellis county, Tex., and by J. A. Ramsey, president, and by E. F. Ballard, cashier, of said bank and depository aforesaid on or before October 1, 1918."

It thus appears that relator and another, who are alleged to be respectively cashier and president of the Farmers' & Merchants' Bank of Ovilla, Ellis county, Tex., were charged with willfully failing and refusing to file annual reports in duplicate of receipts and disbursements for the year ending August 31, 1918, of the funds of the Ovilla independent school district, on the prescribed form furnished said parties during August, 1918, the said bank having been made the legal depository of said school district, and the report having been required by law to be made by said bank as depository, and by said defendants as president and cashier, on or before October 1, 1918. No offense against the law is charged by this complaint, which seems to have been prepared with reference to the requirements of article 2773, chapter 12, title 48, Revised Civil Statutes, which require such duplicate annual report of receipts and disbursements for the specific years ending August 31, on prescribed forms furnished by the department of education. After the opinion in Hall v. State, 80 Tex. Cr. R. 109, 188 S. W. 1002, in which legislative attention was invited to the fact that the civil statutes required various reports from those connected with the schools, and that in many instances no penalty for failure was attached, the Thirty-Fifth Legislature, at its regular session, in chapter 104 (Vernon's Ann. Pen. Code Supp. 1918, art. 1513h), passed an act which is as follows:

"The state superintendent of public instruction shall require of county judges acting as ex officio county superintendents of public schools, county, city, and town superintendents, county and city treasurers and depositories, and treasurers and depositories of school boards, and other school officers and teachers, such school reports relating to the school fund and other school affairs as he may deem proper for collecting information and advancing the interests of the public schools, and shall furnish the county, city and town superintendents, treasurers and depositories and other school officers and teachers for the use of such teachers and officers the necessary blanks and forms for making such reports and carrying out such instructions as may be required by them and any county judge acting as ex officio county superintendent, or county, city or town superintendent, assessor, county treasurer, county depository or treasurer or depository of any school district or teacher who shall willfully fail to make such report within twenty days after the same shall have been required by the state superintendent to be filed shall be deemed guilty of a misdemeanor and shall on conviction be fined in any sum not less than $50.00 nor more than $500.00, or by confinement in the county jail for not less than thirty, nor more than sixty days, or by both such fine and imprisonment, and the state superintendent of public instruction shall withhold warrants for further payment of state apportionment until the aforesaid officials have made satisfactory reports as herein directed."

Carefully examining this act, which is the present law, it appears to us that in order to charge an offense under its terms applicable to the facts in the instant record, it would be necessary to substantially allege that the state...