
    CARLSON v. STATE.
    (No. 5977.)
    (Court of Criminal Appeals of Texas.
    June 15, 1921.)
    Weights and measures <®==> 12 — Regulation alleged to have been violated must be averred and proved.
    To obtain a prosecution for selling bread of insufficient weight, in violation of an order and regulation by the superintendent of weights and measures, made under Acts 36th Leg. (1919) c. 131, the state must disclose by averment the making of the order, and establish by proof the allegation thus made.
    ■ Appeal from Tarrant County Court; Hugh L. Small, Judge.
    B. C. Carlson was convicted of selling bread under weight, and he appeals.
    Reversed, and prosecution dismissed.
    Moses & Rowe and Burney Braly, all of Fort Worth, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, P. J.

It is charged in the information that the appellant— '

“ * * * did then and there expose for sale, offer for sale, and did then and there sell 8 loaves of bread, said 8 loaves of bread being then and there 7 pounds and 10 ounces in aggregate weight, and said loaves of bread not being then and there 3-pound or 48-ounce loaves of bread, and not being then and there 2-pound or 32-ounee loaves of bread, and not being then and there l%-pound or 24-ounce loaves of bread, and not being then and there 1-pound or 16-ounce loaves of bread.”

' He was convicted of a misdemeanor, and punishment fixed at a fine of $200.

The conviction, we assume, is under chapter 131, Acts of the Thirty-Sixth Legislature. This act; in section 1, adopts the standard of weights and measures adopted and used in the United -States as the legal standard of weights and measures in this state, with the proviso that upon the commodities upon which no standard is fixed by Congress that fixed by the state shall obtain. The office of .state superintendent of weights and measures is established by the act. The standard of weights and measures approve’d by the United States Congress June 14, 1836 (5 Stat. 133), with such addenda as may have been provided by Congress, is adopted. Section 5 provides for the safe-keeping of the standards established and contains the following:

“The state superintendent of weights and measures shall establish tolerances and specifications for commercial weighing and measuring apparatus for use in the state of Texas, similar to the tolerances and specifications recommended by the national bureau of standards and he may establish a standard net weight or not count of any commodity, produce, or article, and prescribe such tolerances for same as he may in his best judgment deem necessary for the proper protection of the public. Any person violating such standards or tolerances shall be guilty of misdemeanor and punished by a fine, or a fine and imprisonment, as hereinafter provided and set forth.”

Many other provisions are contained in the act, including section 29, which prescribes the penalty. No provision of the law establishes the weight of bread, nor is there named in the law any allowed amount of variation from any standard fixed by the statute. If the sale of bread described in the information is a violation of the law, it becomes so by reason of the operation of the law upon some act done by the state superintendent of weights and measures in accord with the part of section 5 which we have quoted.

Neither by averment nor proof is it shown in the record that any tolerances or specifications concerning bread had been established by the superintendent of weights and measures at the time the unlawful act is charged to have been committed. Relying upon a violation of the order and regulation made by the superintendent of weights and measures, it would be essential that the state should disclose by averment the making of the order, and establish by proof the allegation thus made. In the absence of these requisites, no case is made against the appellant.

Whether the subject is within the police power inherent in the Legislature under the Constitution, and whether, if it is, the statute in question manifests a proper exercise thereof, are questions the decision of which are not necessary, and a discussion of them is pretermitted. See Ex parte Leslie, 87 Tex. Cr. R. 476, 223 S. W. 227. Having reached the conclusion that the judgment of the trial court must be reversed, and the prosecution ordered dismissed, for the reason that it is neither alleged or proved that any regulation had been made or promulgated attempting to make unlawful the acts which are described in the pleading, the interest apparent in the appellant demands no further action upon the part of the court.

For the reasons stated, the judgment of the trial court is reversed, and the prosecution ordered dismissed. 
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