28 Tex. Ct. App. 498 | Tex. App. | 1890
One of the statutory requisites of an information is “ that it shall appear to have been presented in a court having jurisdiction of the offense set forth.” Code Crim. Proc., art. 430, subdiv. 2. It does not appear from the information in this case, except inferentially, in what court the same was presented, or that it was presented in any court. This requisite, like all others, must be made to appear by direct affirmative allegation. Thomas v. The State, 18 Texas Ct. App., 213; Code Crim. Proc., art. 432.
This defect in the information having been pointed out by an exception should have been cured by amendment, or the exception should have been sustained. Other exceptions made to the information are not maintainable, because not supported by the record. It is charged in the information that both an assault and battery was committed by the defendant in the house of a private family.
We will not determine the question as to the sufficiency of the verdict further than to say that if it was the intention of the jury to find the defendant guilty of a simple assault only the verdict should have so specified.
Because of the defect in the information above stated, the judgment is reversed; but said defect being one of form and amendable, the prosecution will not be dismissed, but the cause is remanded.
Reversed and remanded.
Judges all present and concurring.
