W. E. Brown v. The State, 26 Tex. Ct. App. 540

Willson, Judge. In the information it is charged that, “on or about the first day of January, A. D. 1888, in the county of Smith and State of Texas, one W. E. Brown did then and there solicit insurance on behalf of the Kentucky Mutual Security Fund Company, of Louisville, Kentucky; and did then and there take and transmit for H. P. Smith an application for insurance to said company; and did then and there deliver to said H. P. Smith a policy of insurance from said company; and did then and there receive and collect from said H. P. Smith the premium upon said policy; and that the said W. E.

Brown was not then and there a citizen of this State who arbitrated in the adjustment of losses between the insurers and the assured, nor to the adjustment of particular and general average losses of vessels and cargoes by marine adjusters who had paid an occupation tax of two hundred dollars for the year in which the adjustment was made; and the said W. E.

Brown was not then and there a practicing attorney at law in the State of Texas, acting in the regular transaction of his business as such attorney at law, and who was not a local agent and acting as adjuster for any insurance company; and that said company had not complied with the requirements of the laws of the State of Texas, and had not received a certificate of authority from the Commissioner of Insurance, Statistics and History of the State of Texas, as required by law.” It is evident that the information was drawn under the Act of July 9, 1879, defining who are insurance agents, and prescribing punishment for acting as such agents unlawfully (Willson’s Crim.

Stat., secs. 642, 643), and it is for the offense denounced by that act that the defendant was convicted. A motion in arrest of judgment was made by the defendant, and was overruled by the court. The special ground of the motion in arrest is that the information is insufficient, because it does not aver that the “Kentucky Mutual Security Fund Company,” of which the defendant is charged as acting as agent, was then and there an insurance company. There is no express averment in the information that said company was an insurance company. Is such averment essential ?

We are of the opinion that it is in an information or indictment framed under the act referred to. Under that act it is not an offense to act as agent for any other than an insurance company. A careful reading of the act will make manifest the correctness of this conclusion. If this prosecution was under the act of 1875 (Penal Code, art. 387), it might not be necessary to allege more than that the defendant did transact the business of life, fire or marine insurance in this State as agent, stating the acts which he performed, and the name of the company for which he acted. But that

article and the statute under which this conviction was had are materially different, and can not be construed as one statute. They prescribe different penalties and different elements, and can not be regarded as embracing but one and the same offense. In all other particulars than the one mentioned, the information is sufficient. (Smith v. The State, 18 Texas Ct. App., 69.) And it would perhaps be sufficient in this particular if we could be permitted to indulge in inference. From the statements in the information, it might be inferred that the company named was an insurance company.

But inferences and intendments can not be indulged in testing the sufficiency of an indictment or information. The facts which constitute the offense must be directly and explicitly averred, and the rule is imperative and not to be disregarded. Every thing should be stated in an indictment or information which it is necessary to prove. (Code Crim.

Proc., art. 421.) In a prosecution for this offense it would certainly be necessary to prove that the defendant acted as agent for an insurance company, and yet it is not alleged that he did so act for an insurance company, but merely that he acted for the Kentucky Mutual Security Fund Company, which may or may not have been an insurance company. (Kerry v. The State, 17 Texas Ct. App., 178; Pierce v. The State, Id., 232.) Opinion delivered December 12, 1888.

Because, in our opinion, the information and the complaint upon which the same is based are substantially defective, the judgment is reversed and the prosecution is dismissed. Reversed and dismissed.