
    SCHAPIRO v. STATE.
    (No. 3176.)
    (Court of Criminal Appeals of Texas.
    June 17, 1914.
    On Motion for Rehearing, Oct. 14, 1914.)
    1. Indictment and Information (§ 79)— Requisites and Sufficiency — Clerical Errors — Surplusage.
    The validity of a complaint and information, alleging that accused unlawfully pursued the occupation of a pawnbroker without a license, and averring that the taxes due by him to the state for the occupation amounted to $150, and that the taxes due the county on the occupation amounted to $75, and that the taxes due the county had been “therefore” duly levied by the commissioners’ court of the county, is unaffected by the inadvertent use of the word “therefore” in place of “theretofore,” which must be regarded as surplusage.
    [Ed. Note. — For other eases, see Indictment and Information, Cent. Dig. §§ 209-214; Dec. Dig. § 79.]
    2. Pawnbrokers (§ 11) — Offenses—Acting without License — Pleadings.
    Under Rev. St. 1911, art. 7355, imposing an annual occupation tax on pawnbrokers, and article 7357, empowering the commissioners' courts of the several counties to levy for county purposes one-half of the occupation taxes levied by the state, and Pen. Code 1911, art. 130, punishing any person pursuing any occupation taxed by law without obtaining a license therefor, a complaint and information, which alleges that accused unlawfully pursued the occupation of pawnbroker, which occupation was taxable by law, without obtaining a license therefor, and which avers that the tax due the state was $150, and that the tax due the county was $75, and that the tax due. the county had been levied by the commissioners’ court, is sufficient without alleging that the commissioners’ court had entered the order fixing the county tax, and without alleging that accused loaned money, received deposits as security for the payment of loans and interest on personal property, and what property he took as security and to whom he made loans.
    [Ed. Note. — For other cases, see Pawnbrokers, Cent. Dig. § 7; Dec. Dig. § 11.]
    3. Criminal Law (§§ 1092, 1099) — Statement of Facts — Bill of Exceptions — Time of Filing.
    A statement of facts not filed until 63 days after the adjournment of the term of the county court, and a bill of exceptions not filed until 69 days after adjournment, cannot be considered on appeal.
    . [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2866-2880, 2919; Dec. Dig. §§ 1092, 1099.]
    On Motion for Rehearing.
    4. Pawnbrokers (§ 11) — License — Statutory Provisions.
    Rev. St. 1911, art. 6155 et seq., declaring what pawnbrokers shall do when receiving an article in.pledge, and what they shall do when they sell it, and Pen. Code 1911, art. 641, punishing a pawnbroker violating the law in either receiving or selling a pledged article, do not fix the liability of a pawnbroker pursuing the occupation without first obtaining a license, but his liability is determined by Rev. St. 1911, arts. 7355, 7357, and Pen. Code 1911, art. 130.
    [Ed. Note. — For other eases, see Pawnbrokers, Cent. Dig. § 7; Dec. Dig. § 11.]
    Appeal from Bexar County Court; J. R. Davis, Judge.
    •Harry Sehapiro was convicted of pursuing the occupation of a pawnbroker without obtaining a license, and he appeals.
    Affirmed.
    Emmett B. Cocke, of San Antonio, for appellant. C. E. Lane, Asst. AttV. Gen., for the State.
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, P. J.

The complaint and information aver that on or about October 19, 1913, appellant in Bexar county, “did then and there unlawfully engage in, pursue, and follow the occupation of a pawnbroker, the said occupation being taxable by law, without first obtaining a license therefor; and the taxes then and there due by him to said state, upon said occupation amounted to $150; and the taxes then and there due by him to said county upon said occupation amounted to $75; the said taxes due the said county having been therefore [theretofore] duly levied by commissioners’ court of said county contrary to the form of the statute.” It' is certain the word “theretofore” was intended where “therefore” is used above, and the inadvertence cannot affect the validity of the pleading. Besides “therefore” could and should be regarded as surplusage. Herrington v. State, 166 S. W. 722, and cases cited.

Article 7355, Revised Civil Statutes, enacts that there shall be levied on and collected from every person pursuing the occupations named in the following subdivisions of this article an annual occupation tax which shall be paid in advance: Subdivision 23 says,.“from every pawnbroker an annual tax of $150.” Article 7357 expressly gives the commissioners’ courts of the several counties power to levy for county purposes one-half of the occupation taxes levied by the state. Article 130, P. C., makes it an offense for any person to pursue or follow any occupation taxed by law without first obtaining a license therefor; the penalty prescribed being not less than the amount of taxes, nor more than double that sum.

The pleadings follow the statute, and are in strict conformity to the forms laid down by both Judge White and Judge Wilson in their Ann. O. C. P. So that appellant’s motion to quash the pleadings because the same did not contain an allegation that the commissioners’ court of said county had duly entered an order fixing the county tax at one-half that of the state was properly overruled. The pleading did not have to allege that the order was duly entered. Nor was the pleading bad because it is claimed it only alleged conclusions. It alleged the facts. Nor did the pleading- have to allege that appellant lent money, received deposits as security for the payment of loans and interest on personal property; nor the rate of interest he charged, what property he tools as security, and to whom he made such respective loans. None of this had to be alleged in the pleading. The cases cited by appellant of Crews v. State, 10 Tex. App. 292, and Woolsey v. State, 14 Tex. App. 57, are not in point..

The term of the county court at which this conviction, was had adjourned February 28, 1914. The statement of facts was not filed until 63 days later, and the bills of exceptions 69 days after adjournment. The state’s motion to strike out and not consider them must, therefore, be sustained. Durham v. State, 155 S. W. 222; De Friend v. State, 153 S. W. 881; Stephens v. State, 158 S. W. 531, 532; Wilson v. State, 160 S. W. 454; Hampton v. State, 161 S. W. 966; Newsome v. State, 162 S. W. 891; and a great many other eases. ’

No other-question is raised which can be considered in the absence of bills of exception, or statement of facts. The judgment is affirmed.

On Motion for Rehearing.

Appellant urges that this prosecution cannot be maintained on article 130, P. C., and articles 7355 and 7357, R. S., but if maintained at all, it must be under article 641, P. C. In this he is clearly wrong. Article 641, P. C. is:

“If any pawnbroker, or person doing any business as such, shall receive any article m pledge, or' sell the same without complying with the laws regulating pawnbrokers in this state, he shall be punished by fine not less than twenty-five dollars nor more than one hundred dollars.”

This article was based on title 103, arts. 6155 et seq. of our Revised Statutes. The Revised Statutes specifically enact what pawnbrokers shall do when they receive an article in pledge, and what they shall do when they sell it, and this article, 641, makes it an offense if the pawnbroker violates that law in either receiving or selling the pledged article, and has no application whatever to the question of the payment of an occupation tax. That is exclusively regulated by the articles of the Code and Revised Statutes, as shown in the original opinion.

The motion for rehearing is overruled.  