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. *Page 111
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. Art. 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. Art. 901, of our Penal Code forbids that any person shall hunt from "a powerboat," et al., any wild game birds, or wild game fowl, or wild game animals, protected by the laws of this State. Art. 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 appears 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 law-making power when they specified that the birds and animals protected by the game laws mentioned are only those which are wild. It is necessary in drafting an indictment for hunting 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.
Judgment reversed and prosecution ordered dismissed.
HAWKINS, J., absent.