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as to the correctness of the announcements both in the original opinion and that on rehearing, and the latter was withdrawn.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 31st 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 *Page 324 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 31st 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 31st 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 one and four are incomplete in that they fail to contain the evidence admitted over appellant's objection. (Sec. 210, p. 134, Branch's Ann. Pen. Code.) Bill number five 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 confused in *Page 325 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 himself an application for a policy of 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.
Affirmed.