Urban v. State , 387 S.W.2d 396 ( 1965 )

ON STATE’S MOTION FOR REHEARING

MORRISON, Judge.

To sustain this conviction it was essential that the State offer proof for the jury’s consideration that the offenses occurred within a 12 months period next preceding the filing of the indictment.

The State has filed an extensive brief in which are cited a number of cases dealing with the construction of instruments and pleadings or a collateral attack thereupon, but not a single case in which the question of the sufficiency of the evidence was being discussed. So at most what went before the jury was a stamp on the back of the indictment. The indictment bears the name, “Mrs. Thornton, Clerk of Court”, as a witness, and yet she was not called. We should not be asked to affirm a conviction without proper proof of an integral element of the case when proof was available and not offered.

The State’s motion for rehearing is overruled.