
    ISANBAUGH et al. v. STATE.
    (No. 7414.)
    (Court of Criminal Appeals of Texas.
    Feb. 7, 1923.
    Appeal Reinstated April 4, 1923.
    State’s Rehearing Denied Oct. 24, 1923.)
    1. Criminal law <&wkey;>!!3l(4) — Appellate court must dismiss appeal under statute, where procedure is not complied with.
    Where order overruling the motion for new trial and containing the notice of appeal by mistake bore a date after adjournment of the term, the appeal will be dismissed, under Vernon’s Ann. Code Cr. Proc. 1916, art. 915.
    On Rehearing.
    2. Theaters and shows —Information for exhibiting dancing performance held insufficient.
    An information charging defendants with unlawfully exhibiting a dancing performance by women is defective, when it fails to allege that the offenders were composed in whole or in part of women; that being essential element under Vernon’s Ann. Pen. Code Supp. 1922, art. 513a.
    Appeal from Limestone County Court; H. ■ P. Kirby, Judge.
    T. E. tóanbaugh, R. D. Reed, Burt Deason, and Earl Tucker were convicted of exhibiting a dancing performance by women, and they appeal.
    Reversed, and prosecution dismissed, on rehearing.
    William Kennedy, of Groesbeck, and Stubbs & Walters, of Mexia, for appellants.
    Ira Lawley, of Groesbeck, and R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The conviction is for unlawfully exhibiting a dancing performance by women.

This case was tried at the June term of court, the end of which came on the 24th day of June, 1922. The order overruling the motion for new trial bears date July 21, 1922. In that order the notice of appeal to this court is given. Calling attention to this state of the record, a motion is made to dismiss the appeal. Responding to the motion, the appellant has filed an affidavit to the effect that the motion for new trial was overruled on the 21st day of June, and that the notice of appeal was given and entered of that date, but that by mistake it bears date July 21, 1922, at which time the court was not in session.

To give this court jurisdiction, there must be a notice of appe'al given at the term and entered of record. It is provided, however, in the same statute, that if the notice is given, but not entered of record, it may be entered'of record, either in term time or vacation, on proof that the notice was properly • given. See Code Cr. Proc. art. 915; 2 Vernon’s Tex. Cr. Stat. 1916, pp. 877, 878. As the record is presented, the caption showing that the court adjourned in June, and the entry of the notice of appeal bearing date of July, it will be necessary for the court to grant the motion to dismiss the appeal. See 2 Vernon’s Tex. Cr. Stat. 1922 Supplement, p. 2629, and citation of cases. This dismissal, however, will not prevent an amendment of the record to agree with the facts, as provided by article 915, supra, and from the amended order an appeal may be prosecuted. See Bennett v. State, 80 Tex. Cr. R. 661, 194 S. W. 145, 148.

The appeal is dismissed.

On Motion for Rehearing.

Proper bond having been filed, the appeal is reinstated.

The conviction is for unlawfully exhibiting a dancing performance by women. The offense is defined in article 513a, Vernon’s Tex. Pen. Code, 1922 Supplement. The statute reads thus:

“It shall hereafter be unlawful for any person, persons, firm, - troupe, company, corporation, or aggregation of persons, traveling from place to place, composed in whole or in part of women to show or exhibit in any dancing performance, or as dancers in a tent, enclosure, temporary structure, or in any location whatsoever.”

This language is followed by a proviso exempting from the operation of the statute a regularly organized show, theatrical company, or troupe, and some other performances. Article 513b prescribes the penalty.

A motion to quash the information lis made upon the ground that in each of the counts there is an absence of an averment that the alleged offenders were “composed in whole or in part of women.” The averment omitted is deemed essential. The words of the statute, “composed in whole or in part of women,” are descriptive of the offense, and the failure to embrace it in the pleading is fatal. The motion to quash the information should have been sustained. The offense is aimed at those companies, organizations, or aggregations which are “composed in whole or in part of women.”

The judgment is reversed, and the prosecution ordered dismissed. 
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