
    NAVE v. STATE.
    (No. 4407.)
    (Court of Criminal Appeals of Texas.
    March 21, 1917.)
    1. ELECTIONS <&wkey;328(l) — PAYING POLL TAX— Advancing Monet — Indictment.
    An indictment under Pen. Code Í911, § 239, declaring it an offense to advance money to another knowingly to be used to pay the other’s poll tax,. must charge defendant advanced it knowing it was to be so used.
    [Ed. Note. — Eor other cases, see Elections, Cent. Dig. §§ 355, 360.]
    2. Indictment and Ineoemation <&wkey;119 — Subplusage — Date.
    The year, in the charge of an indictment that defendant advanced money to another to be used by him for payment of his poll tax for the year 1916, cannot be treated as surplusage, being part of the description of the offense.
    [Ed. Note. — Eor other cases, see Indictment and Information, Cent. Dig. §§ 311-314.]
    Appeal from Live Oak County Court; W. W. Caves, Judge.
    Dr. S. F. Nave was convicted, and appeals.
    Reversed, and order dismissed.
    Lewright &' Douglas, of San Antonio, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The indictment charges, omitting formal parts:

“That Dr. S. E. Nave, on or about the 10th day of January, 1916, and anterior to the presentment of this indictment, in the county of Live Oak, and state of Texas, did then and there unlawfully advance to George Cherry money, to wit, $2 currency of the United States of America, to be used by the said George Cherry for the payment of the poll tax of said George Cherry for the year 1916, against the peace and dignity of the state.” ■

Motion was made to quash this indictment on several grounds. It will be noticed from the reading that it fails to 'charge, as required by .article 239 of the Revised Penal Code, that appellant advanced this money knowing it was to be used in paying a poll tax. This would render the indictment vicious. It will be further noticed that the indictment nowhere charges that this would or could have qualified Cherry as a voter in Live Oak county, or that it could qualify him as a voter. It will be noticed in this connection on the face of the indictment that the money was to be used by Cherry for the payment of a poll tax for the year 1916, and that this occurred about the 10th day of January, 1916. The Assistant Attorney General calls attention to this, with the admission that this could not occur because the taxes of 1916 were not due nor payable; that it could only have been for the payment of the tax of 1915, and contends this could be treated as surplusage. This is descriptive of the offense, and charges definitely that the $2 was advanced to Cherry for the payment of a poll tax for 1916. The contention, we think, of the Assistant Attorney General ought not to be sustained as to its being sur-plusage.

For several reasons it is urged by appellant that the evidence is not sufficient to support the conviction. The facts, substantially, disclose that Cherry was a resident citizen until the fall of 1915 of Milam county, Tex., and not of Live Oak county. He, therefore, did not ¿we any poll tax in Live Oak county for the year 1915. It is useless to discuss this question, because he did not owe a poll tax in that county at the time. The tax collector says he called Cherry’s attention to that fact at the time he paid the money, but Cherry insisted on paying it.

There is another question in the case, strongly presented and ably discussed, which the writer believes to be well taken, but his views have not prevailed, as is shown by the opinion of the majority in the motion for rehearing in Solon v. State, 54 Tex. Or. R. 261, 114 S. W. 349. This has been followed by two or three later decisions. To the prevailing opinion in that case the writer entered a dissent. These are matters now of judicial history, and can be found reported in 54 Tex. Cr. R. at page 261, 114 S. W. 349. The writer has not yet seen any reason for changing his opinion and the reasons therefor as presented in the dissenting opinion in that case.

The indictment in the case being insufficient to charge an offense for the reasons stated, the judgment will be reversed, and the prosecution ordered dismissed. 
      <S&wkey;Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     