Lewis v. State
| Citation | 39 S.W. 570 |
| Parties | LEWIS et al. v. STATE. |
| Decision Date | 10 March 1897 |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
The appeal in this case was dismissed at the Tyler term, 1896, of this court, because a copy of the brief was not filed in the court below. It appears upon motion for rehearing that there was an agreement between the district attorney and counsel representing the defendant, in which the rule requiring a copy of the brief to be filed in the court below was waived. This being true, we will reinstate the appeal, and consider the case upon its merits.
A demurrer was interposed because the scire facias and bond did not state a cause of action against appellant. A cause of action was very clearly stated in the scire facias. The bond describes an offense known to the laws of this state. It is almost in the precise language of the statute defining the offense. Appellant was prosecuted for violating article 411, Rev. Pen. Code. This act was passed in 1893. The Civil Statutes fix the amount of taxes to be collected from a person engaging in the sale of spirituous liquors; and for a failure to pay such taxes the punishment is regulated by the tax due, so far as the pecuniary portion thereof is concerned. In addition to this, the jury may imprison the defendant in the county jail from 10 days to 90 days, in their discretion. It is contended that since the act of 1893 no law required a license for the sale of intoxicating liquors. The act of 1893 requires it, and this is sufficient.
Appellant requested the court on the trial to instruct the jury that We cannot imagine how such a charge as this was applicable in a scire facias case. As before stated, the bond was good, the scire facias sufficient, and there is no question that appellant signed the bond, and the only issue that could have been raised was whether the principal had a sufficient excuse for not attending court as he had bound himself to do by his bond.
There was no error in the court admitting in evidence the scire facias. If there was a variance between the bond and the recitation in the...
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