
    JONES v. STATE.
    (No. 7489.)
    (Court of Criminal Appeals of Texas.
    April 11, 1923.
    State’s Rehearing Denied June 6, 1923.)
    On Rehearing.
    1. Insurance <&wkey;>30 — Soliciting without certificate held punishable when done either for foreign or domestic company.
    When construed with Rev. St. art. 4960, Acts 31st Leg. (1909) c. 108, § 49, make it an offense to solicit insurance without certificate from commissioner of insurance and banking, whether for foreign or domestic company, and information was not defective because not alleging that company solicited for was foreign one.
    2. Criminal law <&wkey;>!09l(4) — Bill of exceptions held insufficient to apprise court whether trial court’s action was erroneous.
    Bills of exceptions which do not contain evidence admitted over objection or state surroundings and connections with sufficient detail to permit appellate court to determine whether ruling on admission of evidence was erroneous do not show error.
    3. Insurance &wkey;>30 — Company’s authority not defense to charge of soliciting without certificate.
    In prosecution for soliciting life insurance without certificate of authority from commissioner of insurance, defendant was not entitled to acquittal if he had authority from insurance company to represent it.
    4. Criminal law <&wkey;8l5(3) — Instruction Ignoring part of charge held properly refused.
    Where information alleged that defendant solicited insurance and received compensation, and transmitted application for policy, and assumed to act without certificate of authority, there was no error in refusing his request that, unless he received compensation, jury should acquit, as it ignored part of charge.
    Appeal from Wichita County Court, at Law; Guy Rogers, Judge.
    Emmet A. Jones was convicted of violating the insurance law, and he appeals.
    Affirmed on rehearing.
    Davenport & Thornton, of Wichita Falls, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Appellant was convicted of violating the insurance law; punishment fixed at a fine of $150.

The prosecution is apparently based upon section 49. Chapter 108, Acts Thirty-First Legislature, which forbids one to act as the agent or solicitor of a life insurance company without a certificate of authority to act as such agent.

It is charged that appellant solicited Sam Kruger to take an insurance policy in the “Protective Life Insurance- Company,” and did receive 'directly or indirectly compensation therefor, and had at the time no cer-tificáte of authority to act as agent for said company.

Section 47 of the act in question contains the following:

“Every such foreign company shall, by resolution of its board of directors, designate some officer or agent who is empowered to appoint or employ its agents or solicitors in this e state and such officer or agent shall promptly notify the commissioner in writing of the name, title and address of each person so appointed or employed. Upon receipt of this notice, if such person is of good reputation and character, the commissioner shall issue to him a certificate which shall include a copy of the certificate of authority authorizing the company requesting it to -do business in this state and the name and title of the person to whom the certificate is issued.”

There is evidence that appellant bad been appointed agent for the Protective Life Insurance Company, but that no certificate from the commissioner of insurance and banking of this state ratifying his appointment had been issued. The conviction is foun’ded upon the theory that appellant had violated the law in soliciting insurance without previously receiving a certificate from the commissioner of insurance and banking showing his consent to appellant’s appointment as agent. Unless we misconceive the law upon which the prosecution is based, it requires that such certificate be issued in cases only in which the agency is that of a “foreign” insurance company. Section 47, which we have quoted above, refers in terms to a “foreign company,” and we have found nothing in that section nor' in any other section of the act which requires that the certificate mentioned be issued where the agency is that of a domestic insurance company. The statute (section 1) very clearly draws the distinction between foreign and domestic companies. It says that the term “foreign company” means any life, accident, or health insurance company organized under the laws of any other state or territory of tbe United States or foreign country; that the term “home” or domestic company as used herein designates those life, accident, or life and accident, health and accident, or life, health, and accident, insurance companies incorporated and formed in this state. Throughout the act are found provisions which' related to the home or domestic insurance companies which do not relate to foreign insurance companies, and vice versa. Section 47, supra, seems to be one of these.

In writing the information the pleader takes no note of this distinction, but describes the company thus, “Protective Life Insurance Company,” and there is found in the information no other designation or intimation that it is a foreign insurance company. This being true, no offense is charged, because under the act in question it is not made an offense to solicit insurance without a certificate from the commissioner of insurance and banking, unless the solicitation be upon behalf of a foreign insurance company.

For these reasons the judgment is reversed and the prosecution ordered dismissed.

On Rehearing.

HAWKINS, J.

The original opinion was delivered on the 11th day of April, 1923. The state filed a motion for rehearing, and on June 6, 1923, an opinion overruling the state’s motion was announced. Upon our attention being called to a statute to which we had not theretofore been cited, we became doubtful as to the correctness of the announcements both in the original opinion and that on rehearing, and the latter was withdrawn.

The prosecution is based upon section 49, chapter 108, Acts Thirty-First Legislature, which reads as follows:

“Any person who for direct or indirect compensation solicits insurance, in behalf of any. company, or transmits for a person other than himself, an application for a policy of insurance to or from such company, or assumes to act in negotiation of insurance without a certificate of authority to act as agent or solicitor for such company, or after such certificate of authority shall have been cancelled or revoked, shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than one hundred dollars.”

It is apparent from the caption of the act in question that it covers the subject of the incorporation of “home” or “domestic” insurance companies, and also the subject of authorizing insurance companies which had been incorporated under the laws of other states to transact business in this state, and to regulate the business of all such companies. The original opinion discloses that it was based upon the proposition that nowhere in the act under consideration was there found a direct requirement that the agent for an insurance company be supplied with a certificate of his authority save as found in section 47, which is copied in the original opinion and which relates to foreign companies alone; hence our conclusion that a failure to allege that appellant was the agent of a foreign company vitiated the indictment. Our attention is now by the state called to article 4960 of the Revised Civil Statutes, which reads as follows:

“It shall not be lawful for any person to act within this state, as agent or otherwise, in soliciting or receiving applications for insurance of any kind whatever, or in any manner to aid in the transaction of the business of any insurance company incorporated in this state or out of it, without first procuring a certificate of authority from the commissioner of agriculture, insurance, statistics and history (commissioner of insurance and banking). Acts May 2, 1874; P. D. 7116g.”

This statute appears never to have been repealed. Although chapter 108 of the Acts of the Thirty-First Legislature in section 69 repeals specifically many articles of the Revised Civil Statutes, article 4960 is not one of those included in such repealing clause. It becomes necessary, therefore, to construe the act under which this prosecution was based in connection also with the provisions of article 4960, and, taking them together, having in mind that chapter 108 dealt with both foreign and domestic companies, we have reached the conclusion that we were in error in our original holding that section 49 of the Acts of the Thirty-First Legislature referred to foreign insurance companies alone, and it follows that our further conclusion that the indictment was bad in omitting to allege that appellant was the agent of a “foreign” company was also erroneous.

Bills of exception 1 and 4 are incomplete, in that they fail to contain the evidence admitted over appellant’s objection. Section 210, p. 134, Branch’s Ann. Pen. Code. Bill No. 5 does not give us sufficient information. It appears to be a statement as to what the witness Newell wished to accomplish in his own business by “lining up with witness some of the prominent men in town and splitting the commission with appellant.” The bill appears to be cpnfused in some way. As presented, no reason is shown in the bill why the witness desired to divide his commission with appellant or what appellant had to do with the matter in any respect. We fail to see the connection between Newell’s activities and the charge being investigated against appellant, but the bill does not state the surroundings and connections with sufficient detail for us to reach the conclusion that the action of the court in regard to the matter was erroneous.

Other bills complain of the reception of certain evidence which we think was admissible upon the general issue as to whether appellant was holding himself out and acting as agent of the company. The special charge requested, which directed the jury to acquit appellant if he had received authority from the insurance company to represent them, was properly refused. The question being investigated was not whether he had authority from the insurance company to act as agent but whether he had received a certificate of authority from the commissioner of insurance to act as such agent. Appellant requested the court to instruct the jury that, unless appellant directly or indirectly received compensation for his services, they would acquit him. This charge was properly refused because it ignored entirely that part of the information which alleged that he had transmitted for a person other than Ijimself an application for a policy o£ insurance and had assumed to act in negotiations for insurance without the certificate of'authority to so do.

We regret the delay incident to the disposition of this case. If upon original submission our attention had been called to article 4960 of the Revised Civil Statutes, it would have greatly aided us.

The state’s motion for rehearing is granted, the order reversing the judgment is set aside, and the judgment now affirmed. 
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