156 S.W. 644 | Tex. Crim. App. | 1913
Appellant was convicted of violating the pistol law. Motion was made in arrest of judgment, because *241 the information does not specifically allege that the offense had been committed anterior to the presentment of the information; that it does not use the word "anterior" or its equivalent, "heretofore." The information alleges the offense to have been committed on the 28th of September, 1912. The complaint alleges the same date. The complaint was sworn to on the 2d day of October, 1912. The information bore no file mark, but upon motion in arrest of judgment, the facts show with reasonable certainty, that it was filed the same day on which the complaint was filed, towit: October 2. The court ordered that the information be filed nunc pro tunc as of October 2. The case was tried during the month of October. The court had the authority to order the filing nunc pro tunc. Further replying to this motion in arrest of judgment, it will be noticed under all the decisions that this matter can not be taken advantage of by motion in arrest of judgment; that is, with reference to the filing. These matters must come on motion to quash. See Branch's Criminal Law, section 888. We are of opinion that, in reference to these matters, there is no merit, and the law is against appellant's contention.
It is also urged that the evidence is not sufficient to support the conviction. If the facts could be considered there is substantial merit in this contention, but we are not authorized to consider the statement of facts because it was filed too late. Court adjourned on January 4, 1913, and the statement of facts was not filed until February 3, 1913. Under the law applicable to filing statement of facts in County Court the thirty-day time does not apply. Several decisions have recently so held. We can not, therefore, review the evidence. It may be further stated there is no order in the record entered by the court allowing any time after adjournment of court in which to file statement of facts. It seems, under the statute, that if an order was entered, the limit would be twenty days after the adjournment of court. It may be also stated in this connection that there is no showing made as to why the statement of facts was not filed in accordance with the statute. As the record is presented to this court, it is considered that the judgment should be affirmed, and it is accordingly so ordered.
Affirmed.