
    CHESTER v. STATE.
    (No. 5181.)
    (Court of Criminal Appeals of Texas.
    Nov. 20, 1918.)
    Railroads <§rv>255(2) — Regulations — White and Negro Passengers — Oeeenses —Complaint.
    Complaint, alleging violation of Branch’s Ann. Pen. Code, art. 1523, requiring. common carriers of passengers for hire to provide separate compartments for accommodation of white and negro passengers and making it a misdemeanor for a passenger to ride in compartment not designated for his race after having been forbidden to do so by conductor, which failed to charge that interurban car upon which accused was riding was owned by a common carrier of passengers for hire, and which failed to state conductor’s name or that name was not known, was defective.
    Appeal from Galveston County Court, at Law; J. C. Canty, Judge.
    Peter Chester was convicted of being a passenger upon an interurban car provided witb separate compartments in a compartment not designated for bis race after having been forbidden to do so by tbe conductor, and be appeals.
    Reversed, and prosecution dismissed.
    J. M. Gibson, of Houston, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for tbe State.
   DAVIDSON, P. J.

Tbe charging part of the complaint upon which appellant was tried is as follows:

“Pete Chester was then and there a passenger upon an interurban car which was then and there provided with separate compartments and did then and there ride in a compartment not designated for his race after having been forbidden to do so by the conductor in charge of said train and ear, against the peace and dignity of the state.”

Article 1523, found in Branch’s Ann. P. C., provides that—

“Every railway company, street car company and interurban railway company, lessee, manager, or receiver thereof doing business in this State as a common carrier of passengers for hire shall provide separate coaches or compartments. as hereinafter provided, for the accommodation of white and negro passengers, which separate coaches or compartments shall be equal in all points of comfort and convenience.”

Subdivision 5 of said article provides that—

“If any passenger upon a train or street car or interurban car provided with separate coaches or compartments, as above provided, shall ride in any coach or compartment not designated for his race after having-been forbidden to do so by the conductor in charge of the train, he shall be guilty of a misdemeanor, and upon conviction shall be fined not less than five nor more than twenty-five dollars.”

It will be observed from a reading of this statute, under wbicb appellant was convicted, that there is no allegation in tbe complaint that tbe interurban car was a common carrier of passengers for hire as required by tbe statute. It charges that appellant was upon an interurban car, but does not charge that it was an interurban railway company. It does not allege tbe ownership — whether it was a common carrier, or owned by an individual — nor does it allege that it was run as a common carrier of passengers for hire. The essential definition of this offense as found in tbe statute is not alleged. In order to constitute a violation of that statute, tbe necessary ingredients provided by tbe Legislature constituting tbe offense must be charged in tbe indictment, complaint, or information. In order to constitute tbis offense, the party must be a passenger, and tbe company must be a common carrier of passengers for hire. The complaint does not mention tbe name of the conductor who, it is •stated, bad forbidden appellant to ride on tbe interurban car. Tbis, it seems, under tbe authorities, is necessary. He was alleged to be tbe party in charge of tbe car, and bis name should have been stated, and, if not known, then it should have been stated that bis name was unknown. Tbis was decided in Daugherty v. State, 41 Tex. Cr. R. 661, 56 S. W. 620.

For the reasons indicated, the judgment is reversed, and the prosecution is ordered dismissed. 
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