
    STONE v. STATE.
    No. 13459.
    Court of Criminal Appeals of Texas.
    June 18, 1930.
    Appeal reinstated Oct. 22, 1930.
    J. B. Hatehitt, of Wichita Falls, for appellant.
    A. A. Dawson, State’s Atty., of Canton, for the State.
   HAWKINS, J.

Conviction is for violating the game laws by shooting ducks from a power boat, punishment being a fine of ⅜25.

The transcript fails to show any notice of appeal. This is indispensable to confer jurisdiction on the reviewing court. Article 827, C. C. P. (1925); Palmer v. State, 63 Tex. Cr. R. 614, 141 S. W. 109; Hill v. State, 108 Tex. Cr. R. 335, 300 S. W. 70; Thweatt v. State, 110 Tex. Cr. R. 603, 9 S.W.(2d) 1042.

The appeal is dismissed.

On Motion to Reinstate Appeal.

LATTIMORE, J.

At a former term this appeal was dismissed because the record contained no notice of appeal. It is now made to appear that proper notice of appeal was duly given, and the appeal will be reinstated and the case considered upon its merits.

The affidavit and information herein charged appellant with hunting ducks from a power boat. The only question raised is as to whether this allegation charges a violation of any written statute of this state. Article 3 of our Penal Code plainly states that no person shall be punished for any act. or omission, unless same is made a penal offense, and a penalty is affixed thereto by the written law of this state. Article 901 of our Penal Code forbids that any person shall hunt from “a powerboat,” etc., any wild game birds, or wild game fowl, or wild game animals, protected by the laws of this state. Article 872, P. C., defining game birds, describes and names certain ones of them as “wild turkey, wild ducks, wild geese, wild brant,” etc. It thus appeará without any room for discussion that the hunting of ducks, geese, turkeys, etc., is not an offense unless said birds are wild. This was clearly recognized and intended by the lawmaking power when they specified that the birds and animals protected by the game laws mentioned are orily those which are wild. It is necessary in drafting an indictment foxhunting in some manner forbidden by law, or at some time forbidden by law, the particular animals or birds described in the statute above quoted, to set out that the accused in a forbidden manner hunted wild turkeys, etc. The affidavit and information, having omitted the necessary allegation that the ducks hunted were wild, charged no offense.

The judgment will be reversed and the prosecution ordered dismissed.

HAWKINS, J., absent.  