42 Tex. 88 | Tex. | 1874
An information is a written statement filed and presented on behalf of the State by the District Attorney accusing the defendant of an offense which is by law subject to be prosecuted in that way. (Code Criminal Procedure, art. 402.) And all misdemeanors may be presented by either information or indictment. (Code Criminal Procedure, art. 391.) It is not questioned that the offense charged in the information belongs to the class which may be prosecuted by information; but it is insisted that the information was properly quashed, because the affidavit upon which it was made and the information were both made and filed with the clerk in vacation and not in open court. If we admit that an information cannot be presented within the meaning of the code unless the court is in session, still it would be much, too technical an application of the rule to say it should be quashed, if otherwise sufficient, merely because it had been filed with the clerk previous to the meeting of the court.- It surely should be treated as presented when brought to the attention of the court, if then recognized by the District Attorney as an information on which he desired to prosecute the defendant for the offense therein charged against him. If any action had been taken upon the supposition of its previous presentation, this might be set aside and held for naught; but the fact that a capias may have issued upon it, and other steps taken in proseen
As no objection was made to the action taken upon the information during vacation, but the information itself was quashed because it was not presented in open court, what we have said might suffice to dispose of the case. In view, however, of its importance, we deem it proper to give the question presented in defendant’s motion a more direct consideration.
The primary pleading in criminal actions on the part of the State is the" indictment or information. (Code Criminal Procedure, art. 481.) Those on the part of the defendant are classified, and the causes or grounds embraced in each of these classes are specifically enumerated and set forth in the succeeding articles. The only grounds of objection indicated in any of these articles which seems to give the slightest apparent support to the proposition that the information must be filed during the session of the court, is that in which it is said an information may be excepted to for form, if it does not appear to have been presented in the proper court, as required by art. 403 of the same code. (Code Criminal Procedure, art. 488.) The article to which reference is here made says an information is sufficient if it has the eight requisites therein enumerated. The second of these requisites is that it shall appear to have been presented in a court having jurisdiction of the offense set forth. This evidently has reference to the jurisdiction of the court to hear and determine as to the offense presented by the information, and not the time at which the District Attorney may commence or institute a prosecution of the offense by information. If, then, the defendant can object to the information
A presentation by indictment must be made during the session of the court, since there can be no grand jury at any other time. Yet the code provides that the fact of its presentment in open court by the grand jury7 shall be entered upon the minutes of the court. The absence of any similar provision in reference to informations seems strongly persuasive, if not conclusive, that it was not intended or supposed that they would in all instances be filed during the session of the court. The leading object in view, no doubt, in allowing prosecutions for misde
The judgment is reversed and the cause remanded.
Beversed and remanded,