Lightfoot v. State, 17293.

• Decision Date: 06 March 1935
• Docket Number: No. 17293.,17293.
• Parties: LIGHTFOOT v. STATE.
• Court: Texas Court of Criminal Appeals

80 S.W.2d 984

LIGHTFOOT v. STATE.

No. 17293.

Court of Criminal Appeals of Texas.

March 6, 1935.

State's Rehearing Denied April 3, 1935.

Commissioners' Decision.

Appeal from District Court, Travis County; W. F. Robertson, Judge.

J. L. Lightfoot was convicted of knowingly making false report to the comptroller of public accounts of amount of motor fuel sold with view of evading tax on motor fuel, and he appeals.

Reversed and remanded.

Polk Shelton, of Austin, and F. O. Jaye, of DeLeon, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The appellant was tried and convicted of the offense of knowingly making a false report to the comptroller of public accounts of the state of Texas of the amount of motor fuel sold during the month of December, 1933, with a view and for the purpose of evading the payment of a tax thereon, and his punishment was assessed at confinement in the state penitentiary for a term of two years.

The appellant first complains of the action of the trial court in declining to sustain his motion to quash the indictment for the following reasons: (a) Because the indictment fails to charge that he, the said J. L. Lightfoot, delivered a false report to George H. Sheppard, comptroller of public accounts of the state of Texas; and (b) that the indictment shows upon its face that the report was made and sworn to in Comanche county, Tex., and therefore if any offense was committed by the defendant, it was committed in the county of Comanche and not in the county of Travis, the county in which he was indicted in this case, and therefore the district court of Travis county did not have active jurisdiction.

In disposing of the first ground of the motion, we deem it sufficient to set out only so much of the indictment as may be necessary for a better understanding of our interpretation thereof. Omitting the formal parts, the indictment reads as follows: "That J. L. Lightfoot, in said County and State, on or about the 22nd day of January, A. D. 1934, and before the presentment of this indictment, did then and there unlawfully and knowingly make a false report in writing addressed to George H. Sheppard, Comptroller of Public Accounts, State of Texas, concerning the quantity of motor fuel sold by Omega Refining Company within the State of Texas during the month of December, 1933, said report being then and there a report relating to tax on motor fuel and a report required by law to be made and which report was then and there made by the said J. L. Lightfoot as a report of Omega Refining Company, which company was then and there a distributor of motor fuel, which false report was in words and figures as follows: (Here the report is set out in full), which said report was then and there false in that the said J. L. Lightfoot, as representative of the Omega Refining Company, did then and there report to the said George H. Sheppard, Comptroller of Public Accounts, State of Texas, during the month of December, 1933, that only 22,901 net gallons of motor fuel upon which a tax was required to be paid to the State of Texas had been sold within the State of Texas by Omega Refining Company when in truth and in fact said Omega Refining Company had sold within the State of Texas during the month of December, 1933, 35,076 net gallons of motor fuel upon which a tax was required to be paid to the State of Texas, and the said J. L. Lightfoot did then and there well know at the time he made said report showing only 22,901 net gallons of motor fuel that said report was false and untrue."

It occurs to us that inasmuch as it is alleged that he, the said J. L. Lightfoot, made a report in writing addressed to George H. Sheppard, comptroller of public accounts, state of Texas, it is tantamount to saying that he delivered it to the said George H. Sheppard. If this is not true, then in what other manner could he have made a written report to the comptroller? If he had merely made a sworn statement of the net gallons of motor fuel sold by Omega Refining Company in the state of Texas during the month of December, 1933, and had not by some means or agency brought it to the knowledge of and for the inspection of the comptroller, it would not have been a report because as long as the information therein contained was withheld from the comptroller, there was no report of the amount of motor fuel sold by Omega Refining Company. A report means to convey or disseminate information. As long as the desired information is locked up in one's breast and not disclosed, it is not a report. That which is not made known is not reported. We therefore overrule the appellant's first contention. His next contention is that the report was made and sworn to in Comanche county, and therefore the district court of Travis county did not have jurisdiction. This contention appears to us to be untenable because he did not make a report and swear to the same in Comanche county. What he did was to make a statement and swear to it in Comanche county, but this did not become a report until the information therein contained was conveyed to the comptroller of public accounts, state of Texas. The gravaman of the offense under this statute, as enacted by the Regular Session of the 43d Legislature, c. 44 (Vernon's Ann. Civ. St. arts. 7065a—1 to 7065a—14, 7065a—16 to 7065a—18 and Vernon's Ann. P. C. art. 141a—1), lies in the fact that he did deceive and mislead the comptroller with a view and for the purpose of evading the payment of the tax due on motor fuel by listing a part of the motor fuel sold by the Omega Refining Company during the month of December, 1933. The comptroller was not deceived and the appellant had not perpetrated a fraud upon the comptroller until the written report was delivered to him in Travis county, Tex. As...