Ex Parte Stein

• Decision Date: 22 February 1911
• Citation: 135 S.W. 136
• Parties: Ex parte STEIN.
• Court: Texas Court of Criminal Appeals

135 S.W. 136

Ex parte STEIN.

Court of Criminal Appeals of Texas.

February 22, 1911.

Habeas corpus by William Stein to obtain his discharge from conviction for violating the stock law alleged to be in force in justice precinct No. 6, in Fayette county, Tex. Relator discharged.

Brown & Lane, for appellant. Sam C. Lowrey, County Atty., and C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

The relator was charged with permitting his stock to run at large in justice precinct No. 6, Fayette county, the allegation in the complaint being that the law prohibiting stock from running at large was in force in justice precinct No. 6, Fayette county, Tex. Relator was tried in the justice court and convicted. He appealed to the county court, and was again tried and convicted. The fine was in such an amount that no appeal could be taken to this court, and he sued out a writ of habeas corpus, which was heard by this court at a former day of this term. Relator filed a motion in the county court to quash the indictment on various grounds, which was by the court overruled, and in the application for a writ of habeas corpus he presents, in substance, the same grounds.

The agreed statement of facts shows that at the February term, 1910, of the commissioners' court of Fayette county, a petition was presented praying that an election be held to determine whether or not certain stock should be prohibited from running at large in justice precinct No. 6, except certain territory within the said justice precinct, being the incorporated town of Flatonia. The petition describes the justice precinct by metes and bounds, and also describes by metes and bounds the territory within said justice precinct not included in the petition for an election. On February 10, 1910, the court entered an order that said election be held as prayed for on the 2d day of April, 1910, in said order saying: "The subdivision herein described being justice precinct No. 6, Fayette county, Texas, excluding, however, from the above-described territory of justice precinct No. 6, the town of Flatonia, an incorporated town within said justice precinct," then giving the field notes of the territory within justice precinct No. 6 not included in the order for an election. The county judge on February 18th issued his proclamation for said election to be held in accordance with the recitations in the petition and the order, and ordered that polls be opened in Cistern schoolhouse, in Colony schoolhouse, in Praha schoolhouse, and in the courthouse in the town of Flatonia, naming the managers. The returns show the election was held on the day named, and the stock law carried by 41 majority, no one living in the incorporated town of Flatonia (within said precinct) being permitted to vote. On the 18th day of April, 1910, the county judge issued a proclamation declaring that a majority of the votes were cast in favor of the stock law, and in said declaration declared the law in force in all of justice precinct No. 6, in said order not exempting from the operation of the law the incorporated town of Flatonia, as was done in the petition for the election, the action of the commissioners' court in ordering the election, and the proclamation of the county judge ordering the election to be held, naming the voting places and managers of election. Thereafter defendant had a complaint filed against him, in which it was charged that he permitted his stock to run at large in justice precinct No. 6, not excluding therefrom the incorporated town of Flatonia, the citizens of which town were not permitted to vote in the election. The facts show that relator permitted his stock to run at large in the territory in which the election was held.

We do not deem it necessary to notice but three questions raised in the application and relator's brief, as all necessary steps seem to have been taken to put in force the law in the territory in which the petition sought an election.

The relator complains that the county judge had no authority to name the courthouse in Flatonia as one of the places for the citizens to vote, as it was in the territory in which the voters were excluded from participating in the election; that the order declaring the stock law carried and in force declared it in force in all of justice precinct No. 6, when, in fact, the petition and order for the election embraced only a portion of said justice precinct No. 6, and is therefore void; that the indictment alleged that relator had permitted his stock to run at large in justice precinct No. 6, when there was no law in force in said justice precinct No. 6, but only in the portion thereof described in the petition, and the order ordering the election to be held is void. In the agreement it is stated that the courthouse in Flatonia is in the territory excluded, and not in the territory in which the election was petitioned for and held, and it is also agreed that no one living in the excluded territory voted in said election. Where the polling place selected by the proper officers is outside of the election district, the electors who live in the territory to be affected who vote thereat are not disfranchised on that account, if the election is lawfully conducted. 15 Cyc. p. 344, and authorities there cited. In Ex...