
    SHIPP v. STATE.
    (No. 6328.)
    (Court of Criminal Appeals of Texas.
    June 22, 1921.)
    I. Fish 5— Information, charging taking fish with dynamite, held sufficient.
    Information, charging that defendant did unlawfully catch and take and unlawfully attempt to catch and take fish from a certain stream and pool by the use of dynamite and other explosives put in said water, is sufficient to charge an offense under Acts 36th Leg. (1st & 2d Cab. Sess. 1919), c. 73, § 35.
    2. Jury ⅞⅜=»32(2) — Provision for jury of 6 In misdemeanor trial in criminal district court is unconstitutional.
    The Constitution requires a jury of 12 men for misdemeanor trials in the criminal district court of Bowie county, and the Legislature was not authorized to provide for a trial before a jury of 6.
    Appeal from Criminal District Court, Bowie County; P. A. Turner, Judge.
    Howard Shipp was convicted of unlawfully taking fish by the use of dynamite, and he appeals.
    Reversed and remanded.
    W. W. Arnold, of Texarkana, for appellant.
    R. H. Hamilton, Asst. Atty. Gen., for the State.
   HAWKINS, J.

It was charged against appellant that in the county of Bowie and the state of Texas, he did then and there unlawfully catch and take, and did unlawfully attempt to catch and take, fish in and from a certain stream, lake, and pool of fresh water then and there situated, to wit, in and from a stream, lake, and pool of water known as Grindle lake in Barkman Creek, by the use then and there of dynamite and other explosives, put into said water. Conviction was had and punishment assessed at a fine of $25 and 30 days’ imprisonment in the county jail.

The prosecution seems to have proceeded under chapter 73 of an Act passed by the Second called session of. the Thirty-sixth Legislature in 1919, and under section 35 <5f said act, which reads as follows:

“The catching, taking or killing of fish, green turtle or terrapin in any of the salt waters or fresh waters, lakes or streams in the state by poison, lime, dynamite, nitroglycerine, giant powder or other explosives, or by the use of any drugs, substances or thing deleterious to fish life, is'hereby prohibited; and any person offending against this article shall be deemed guilty of a misdemeanor, and upon conviction shall be fined not less than twenty-five dollars nor more than two hundred dollars, and by confinement in the county jail not less than thirty nor more than ninety days.”

Motion was made to quash the information, which was overruled by the court, and we think properly so, as the information seems to be sufficient to charge the offense denounced by the said section of the statute referred to.

Complaint is made that this case was tried in the criminal district court of Bowie county before a jury composed of 6 men, and that the same was unauthorized. Under the authority of the case of Rudolph Rochelle, No. 6327, 232 S. W. 838, this day decided, this assignment must be sustained. It is not necessary to discuss the matter at any length, as our reasons fully appear in the case above referred to.

For this error, the judgment of the trial court must he reversed, and the cause remanded. 
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