Sponberg v. StateSponberg v. State
- Reporters:
- , ,
- Before:
- McCord
The appellant was convicted in the lower сourt for disturbing the peace and fined $5.
After the cоnviction in this case the appellant filed a motion in arrest of judgment on the ground that there had nevеr been presented by the county attorney any information in this cause based upon complaint filеd herein against him, and that he has not been legally tried according to the statutes of this State. An inspection of the record discloses that an affidavit was filed on October 29, 1909, in the County Court of Travis County, made by оne B. L. Kilgore, charging the appellant with going into a public place and using loud, vociferous, vulgar аnd indecent language in a manner calculatеd to disturb the inhabitants of said public place, and the prosecution was proceeded with upоn this affidavit without an information being filed. Article 437, Code оf Criminal Procedure, provides: “All offenses known to the penal law of this State must be prosecuted еither by indictment or information. This provision does not include fines and penalties for contempt of court, nor special cases in which inferior cоurts exercise jurisdiction.” In the case of Garza v. State, 11 Texas Crim. App., 410, this court held that all prosecutions of misdemeanors in the County Court must be by inforpiatiоn, and that you could not proceed to the triаl of a case upon an affidavit. Article 36, Code o£ Criminal Procedure, provides that: “If the offense be a misdemeanor the attorney shall forthwith prеpare an information, and file the same, together with the complaint, in the court having jurisdiction of the offeÁse. If the offense charged be a felony, he shall forthwith file the complaint with a magistrate оf the county and cause the necessary process to be issued for the arrest of the acсused.” We *169 know of no authority of the statute or the lаws of this State authorizing a prosecution in the County Cоurt other than by information. Simply because the offеnse charged is a misdemeanor over which the justiсe of the peace might have jurisdiction to finally try, does not by reason thereof authorize the prosecution in the first instance in the County Court upon аn affidavit alone. All prosecutions for misdemeanors in the County Court must be by information without referencе to whether the offense is one that might be prosеcuted to a final termination in the Justice Court. We, thеrefore, hold that the judgment of the lower court will have to be set aside because the prosеcution was not commenced in the manner provided by law.
The case is, therefore, reversed and the cause remanded.
Reversed and remanded.