State v. Garcia

Decision Date01 January 1873
Citation38 Tex. 543
CourtTexas Supreme Court

1. Under the statute of May 22, 1871, entitled “An act to encourage stock raising and for the protection of stock raisers,” imposing certain fines recoverable before the district court or any justice of the peace having jurisdiction, one-half of the fine to be paid to the informer, and the other half into the county treasury: Held, that indictment will not lie, but proceedings should be upon the relation of the informer.

2. Under said act the fines can only be enforced on a qui tam action, prosecuted for the uses expressed in the statute.

APPEAL from Bexar. Tried below before the Hon. Geo. H. Noonan.

The indictment charged that the defendant “unlawfully and knowingly did purchase two es from one Dyonesio Flores, he, the said Mariano Garcia, then and there well knowing that said Dyonesio Flores had skinned and taken off said es of certain dead animals, to wit, oxen; which said dead animals were not the property of said Dyonesio Flores, but were the property of one Juan Estevan de los Santos, and that said Dyonesio Flores, without the written authority of said Juan Estevan de los Santos, had skinned and taken off said es from said animals as aforesaid, and that said es were purchased by said Mariano Flores without a proper bill of sale, as required by law, and did sell said es, or send the said es to the e yard of Reese & Sons, in the city of San Antonio, Texas, without furnishing a proper bill of sale or e inspector's report, as required by law.”

The defendant excepted to the indictment for the reasons following: 1. That he is not charged with the violation of any criminal law of the state of Texas.

2. That the violation of the law, as charged in the indictment, to wit, the buying, knowingly, of a e skinned from a dead animal without the consent of the owner, is punishable by a fine of ten dollars, recoverable in a qui tam action at the instance of an informer, and in no other way.

The court sustained the exceptions. From this the state appealed, and the action of the court sustaining the exceptions is assigned as error.

Attorney General, for the state. It is not easy to discover how the judge arrived at his second reason for quashing the indictment, that the law “““provides a special mode of proceeding by qui tam action,” when, to a common mind, the reverse would appear to be true. The language of the 8th section (according to the provisions of which the fine prescribed in the 16th is to be recovered), is “recoverable before the district court, or any justice of the peace having jurisdiction, etc.; one-half whereof shall be paid to the informer, and the other half shall be paid into the county treasury; and the offender or offenders shall be confined in the common jail until the whole of the fine and costs shall be paid, for which execution may issue,” etc.

The first question that arises is, “What interest has the informer in the fine inflicted by the 16th section?” The 16th section prescribes that the manner of recovery shall be governed by the provisions of the 8th section; but the 16th section expressly provides that the fine so recoverable shall be paid into the county treasury; the 8th section points out the mode of recovery, but gives an entirely different destination to the fine imposed therein--one-half to the informer, the other half to the county treasury. Must it be understood that because the 16th section adopts the mode of recovery of the 8th, that it also adopts the destination of fine of the 8th, in contradiction to its own provision of destination? Or is it more proper to understand the adoption to be confined strictly to the manner in which the fine shall be recovered, omitting the destination of the fine, that being provided for in the 16th? Is it not, at the least, doubtful, if the informer has any interest in the fine under the section under consideration?

But, admitting the informer to have an interest in the fine, there is no language used in the 8th section conferring on him the power to sue for it in a qui tam action; and “it is a general rule, that no action for a penalty can be maintained by a common informer, unless power is given to him for that purpose by the statute.” Colburn v. Swett, 1 Met. (Mass.) Rep. 234, and cases there cited. As no such power is expressly conferred, it will hardly be inferred from the expression, “one-half whereof shall be paid to the informer;” and the provision will be a dead letter upon the statute book, if the informer may not sue for want of power, and the state may not...

To continue reading

Request your trial
3 cases
  • American Liberty Pipe Line Co. v. Agey
    • United States
    • Texas Court of Appeals
    • 16 December 1942
    ...of this State"; citing Bush v. Republic of Texas, 1 Tex. 455; Doss v. State, 6 Tex. 433; Tarde v. Benseman, 31 Tex. 277; State v. Garcia, 38 Tex. 543; Rawlings v. State, 39 Tex. He contends that Sec. 11 authorized the suit as brought; and that the invoked constitutional provisions were not ......
  • Gibbs v. State
    • United States
    • Texas Court of Criminal Appeals
    • 24 June 1898
    ...state on the subject. Two cases appear to hold that the prosecution can only be maintained in the name of the informer. These are State v. Garcia, 38 Tex. 543, and Rawlings v. State, 39 Tex. 200,—both decided by the supreme court during the reconstruction period. In support of these opinion......
  • American Nat. Ins. Co. v. Murillo
    • United States
    • Texas Court of Appeals
    • 28 November 1928
    ... ... The motion to dismiss must be sustained. The Constitution and statutes of this state limit the jurisdiction of this court in cases appealed from a county court to those in which the judgment or amount in controversy exceeds the sum of ... ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT