Appellant was convicted for violating the "feeding stuff" law and fined $250.
The offenses are prescribed by article 735 of our Penal Code which, as applicable herein, is: Any manufacturer, importer or agent, selling, offering or exposing for sale, any concentrated commercial feeding stuff with a label stating that said feeding stuff contains substantially a larger percentage of protein, fat or nitrogen-free extract, or a smaller quantity of crude fiber, than is contained therein, shall be fined not less than one hundred dollars nor more than five hundred dollars.
The information and complaint aver: that appellant was "the agent and manager of Western Cotton Oil and Gin Company, an incorporated company engaged in said State in the manufacture and sale of concentrated commercial feeding stuff, towit: cotton seed meal and hulls, of said county and State and the said Earl Cogdell did then and there in said Haskell County, Texas, as such agent and manager, sell to A.F. Moffitt, a person doing business under the name of A.F. Moffitt *Page 67 Company in Cleburne, Johnson County, Texas, 200 sacks of cotton seed meal and hulls, each bag containing said meal and hulls had a label thereon stating that said feeding stuff contained substantially a larger percentage of protein than was actually then and there contained therein, towit: the said label contained the statement that said feeding stuff contained not less than 42 per cent of protein, whereas, in truth and in fact, not more than 35.50 per cent of protein was actually then and there in said feeding stuff, and said label thereon further stated that there was a smaller quantity of crude fiber than was then and there actually contained therein, towit: the said label stated that said feeding stuff in said bags contained not more than 12 per cent of crude fiber, whereas, in truth and in fact, said feeding stuff in said bags contained more than 14 per cent of crude fiber and some of said bags or sacks contained 14.98 per cent of crude fiber and no less."
Appellant attacks said law, claiming that wherein it prescribes that the label stating that said feeding stuff contains "substantially" a larger per cent of protein, etc., than is contained therein, is so indefinite and of such doubtful construction, that it can not be understood, and that, under article 6, Penal Code, it is, therefore, wholly inoperative.
This question is not free of difficulty. It seems if we should follow our Supreme Court in the case of the State v. Railway Co., 179 S.W. Rep., 867, holding that "light repairs," in our car shed statute, is not too indefinite or uncertain, and the case of the State v. Railway Co., 106 Tex. 18, 154 S.W. Rep., 1159, under our "water closet" statute, holding that statute valid, and Bradford v. State, 78 Tex.Crim. Rep., 180 S.W. Rep., 702, and the authorities cited in those cases, appellant's attack should not be sustained. However, under the provisions of our Penal Code, and under the authorities in point cited in State v. I. G.N. Ry. Co., 165 S.W. Rep., 892, by the Court of Civil Appeals at Galveston, this court has reached the conclusion that that part of said article 735, Penal Code, which attempts to make it an offense, if the label on the article of feeding stuff states that it contains "substantially" a larger percentage, etc., than is therein, is too indefinite and too uncertain to prescribe an offense. There is a difference between what certainty must be prescribed to make an offense from that which exempts from an offense, and said cases in 179 S.W. Rep., and 180 S.W. Rep., could be distinguished from this case, but the case in 154 S.W. Rep., might not be. Evidently different persons might differ as to what would be "substantially" such larger percentage. For instance, one court or jury might hold that 1 per cent less, or even if a less per cent than that is stated would be a violation of the law, while another might hold that 10 or more per cent less would not be. We are aware that the Supreme Court in 179 S.W. Rep., supra, overruled the Galveston Court of Civil Appeals, that "light repairs" was not too indefinite. So that this court holds that that part of the said article attempting to prescribe an offense is inoperative.
It will be noticed, however, that said article 735 prescribes another *Page 68 offense from that attempted to be prescribed, discussed above, and that is, it makes it an offense for any agent, etc., to sell, etc., said feed stuff when "a smaller quantity of crude fiber than is contained therein" is stated to be therein on the label. The complaint and information charge this offense as well as the other. Therefore, we can not reverse and dismiss this prosecution because of the invalidity of the first charge, but appellant can be held for trial under the other.
Another contention by appellant is that there is a fatal variance between the allegation and the proof, in that the information avers that appellant was the agent, etc., of said oil and gin company, "an incorporated company," and that having alleged this, it was necessary to prove it, and that instead of the proof showing that said oil and gin company was a corporation, that it was proven a partnership and not an incorporated company.
In the opinion of the writer this does not present reversible error, for it was immaterial whether the concern for which appellant was agent was an incorporated company or a partnership, and that that line of authorities which holds that where it is necessary to allege that the injured person is a corporation it is necessary to prove it, does not apply.
Appellant also complains that the evidence is wholly insufficient to show that appellant made the alleged sale to Moffitt. We think his contention on this point is correct. The evidence does not show that appellant made the alleged sale to Moffitt. It does not show who made the sale, but tends rather to show that the firm itself made the sale. No other question need be discussed.
The judgment is reversed and the cause remanded.
Reversed and remanded.
ON REHEARING. March 21, 1917.