
    JOHNSON v. STATE.
    (No. 3566.)
    (Court of Criminal Appeals of Texas.
    May 26, 1915.)
    1. Indictment and Information <&wkey;125 — Duplicity.
    An indictment charging in one count that the defendant “did ■■■ * * unlawfully and knowingly become the agent of E. for * * , * obtaining the receipt for said E. for poll tax, 4 * * and as said agent * * * did unlawfully pay * * * the poll tax, * * * and thereby obtain the receipt for said poll tax,” was duplicitous in ■ that it charged a violation of Pen. Code 1911, art. 229, making it a misdemeanor to become another’s agent to obtain a poll tax receipt or to give another money to induce him to pay his poll tax, and also a violation of article 233, making it a felony to pay or procure another to pay the poll tax of a citizen.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 334-400; Dec. Dig. <&wkey;>125.]
    2. Indictment and Information <&wkey;lll — Payment . of Poll Tax — Negativing Exceptions of Statute.
    Neither an indictment, charging a violation of Pen. Code 1911, art. 229, making it a misdemeanor to knowingly become another’s agent to obtain a poll tax receipt, “except as provided by this act,” nor an indictment charging a violation of article 233, making it a felony to pay or procure another to pay the poll tas of a citizen, “except as is permitted by law,” need negative the exceptions.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 295-298; Dec. Dig. &wkey;lU.]
    3. Ceiminai. Law <&wkey;101 — Jurisdiction — Payment of Poll Tax — Indictment — Transfer to County Court.
    Where an indictment filed in the district court charged a felony committed in violation of Pen. Code 1911, ,art. 233, relating to payment of poll taxes, it was improper to transfer it to the county court, though it also charged a misdemeanor committed in violation of article 229.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 199-205; Dec. Dig. 101.)
    Appeal from Palo Pinto County Court; J. T. Ranspot, Judge.
    Ira Johnson was convicted of violating the law relating to payment of poll taxes, and appeals.
    Reversed, with directions.
    Moyers & Creighton, of Mineral Wells, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was tried and convicted in the county court for a demeanor. The main question is as to the sufficiency of the indictment, so far as a conviction in the county court is concerned.

After the necessary preliminary and closing allegations, which are regular, the indictment avers:

That on January 30, 1914, in said county, appellant “did then and there unlawfully and knowingly become the agent of D. E. Ethridge for the purpose of obtaining the receipt for the said D. E. Ethridge for poll tax for the state of Texas and county of Palo Pinto, due by the said D. E. Ethridge to the said state and county for the year A. D. 1913, and as said agent the said Ira Johnson did unlawfully pay the tax collector of Palo Pinto county, state of Texas, the poll tax due by the said D. B. Ethridge to the state and county aforesaid for the year A. D. 1913, and did then and there and thereby obtain the receipt for said poll tax for the said D. E. Ethridge.”

Appellant claims, and properly raised the question, that this indictment was duplicitous in that in the same count it charged both a misdemeanor and a felony.

Article 229, P. C., is:

“Any person who knowingly becomes agent to obtain a poll tax receipt or certificate of exemption, except as provided by this act, or any one who gives money to another to induce him to pay Ms poll tax, is guilty of a misdemeanor.”

Article 233, P. C., is:

“Any candidate for office or other person who pays or procures another to pay the poll tax of a citizen, except as is permitted by law, is guilty of a felony, and shall be punished by confinement in the penitentiary not less than two nor more than five years.”

It will be clearly seen from these two articles that they make two separate and distinct offenses, one a misdemeanor, the other a felony. The indictment, we think, clearly embraces both, and is unquestionably duplicitous which is bad pleading. Section 383, White’s Ann. C. G. P., and cases therein cited. Clearly article 229 makes it a misdemeanor for any person to knowingly become the agent of another to obtain for him a poll tax receipt or certificate of exemption. If the allegations of the indictment herein liad stopped when it alleged that appellant “did then and there unlawfully and knowingly become the agent of D. E. Ethridge for the purpose of obtaining the receipt for the said D. E. Ethridge for poll tax for the state of Texas and county of Palo Pinto, due by the said D. E. Ethridge to the said state and county for the year A. D. 1913,” and then, of course, concluded, as it did, “against the peace and dignity of the state,” the indictment would have charged a misdemeanor. It was not necessary, in alleging a misdemeanor, to further charge that, as said agent, he paid the tax to the tax collector, and then and thereby obtained a receipt therefor. In making the proof on trial such proof would be proper in order to make out the offense charged as a misdemeanor.

So if the indictment had charged that said appellant “did then and there unlawfully and knowingly pay the tax collector of said county the poll tax due by the said Ethridge to the state and County for the year 1913,” etc., the indictment would have charged a felony, and the additional allegation that he did then and thereby obtain the receipt for said poll tax would not have vitiated the indictment for a felony. And likewise, whether this latter allegation was made or not, proof would have been admissible on the trial that he did obtain the receipt in order to help make out the proof that he unlawfully paid the tax collector the poll tax of Ethridge.

In an indictment for either the misdemeanor or felony, it was not necessary for it to negative the exceptions in either of said articles further or other than it was done by stating that he did then and there unlawfully and knowingly, etc. The exceptions in other articles of the law were matters of defense, and the indictment did not have to negative them. Mizell v. State, 59 Tex. Cr. R. 226, 128 S. W. 125; Murphy v. State, 59 Tex. Cr. R. 479, 129 S. W. 138; Sutphen v. State, 59 Tex. Cr. R. 500, 129 S. W. 144; Payne v. State, 60 Tex. Cr. R. 322, 131 S. W. 1101; Slack v. State, 61 Tex. Cr. R. 372, 136 S. W. 1073, Ann. Cas. 1913B, 112, and authorities cited in the opinions in these cases.

It occurs to us that in any event, if prosecution is continued, another indictment should be drawn, so as to charge either a misdemeanor or felony without being incumbered with the allegations of the other offense. Clearly a party could be prosecuted for both offenses — one for unlawfully and knowingly becoming the agent of another, to obtain a poll tax receipt or certificate for him, a misdemeanor, and also for paying the poll tax of another, whether he did so as agent or not, a felony.

Under tlie circumstances, this case was improperly transferred from the district court to the county court. The case will be reversed, with instructions to the county court to transfer the case back to the district court for disposition in the district court in accordance with this opinion.

Reversed, with instructions. 
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