Ethridge v. State , 76 Tex. Crim. 41 ( 1915 )

The case originated in the County Court by filing complaint charging appellant with gaming. There was no information filed, appellant was tried only on the complaint. Motion in arrest of judgment was based on the failure of the county attorney to file a complaint [information]. This was overruled by the court, it seems, on the theory that appellant had gone to trial without raising the objection that the information had not been filed. This is not a valid reason. Nor did it constitute waiver.

The Constitution, article 5, section 17, among other things, provides that "prosecutions may be commenced in said court by information filed by the county attorney, or by affidavit, as may be provided by law." The Legislature has provided in article 35, Code of Criminal Procedure: "If the offense be a misdemeanor, the attorney shall forthwith prepare an information, and file the same, together with the complaint, in the court having jurisdiction of the offense." The same authority has further provided in article 448, Code of Criminal Procedure: "All misdemeanors may be presented by either information or indictment." And article 449 provides: "All offenses, known to the penal law of this State, must be prosecuted, either by indictment or information. This provision does not include fines and penalties for contempt of court, nor special cases in which inferior courts exercise jurisdiction." Article 478 sets out the required allegations in an information. Article 479 provides that the information shall not be presented by the district or county attorney until oath has been made by some credible person, charging the defendant with an offense. The oath shall be in writing and filed with the information.

The Legislature is vested with authority, doubtless, to prescribe that the case may be tried, in misdemeanors, in the County Court without filing an information under the language of articles 5, 6 and 17 of the Constitution or it may require that the information be filed. This has not only not been done but the opposite is required. The Legislature has provided that the information shall be filed based upon a complaint or affidavit. This would settle the question beyond dispute. Construing the Constitution and the statutes the courts have invariably held that the County Court can not acquire jurisdiction or try a misdemeanor where it originated in the County Court, until an information has been filed. See Garza v. State, 11 Texas Crim. App., 410; Kinley v. State, 29 Texas Crim. App., 532; Leal v. State, 51 Tex.Crim. Rep.; Baker v. State, 54 Tex. Crim. 52. This court will reverse a conviction from the County Court where an information was not filed in that court, provided the case originated in the County Court, whether there was a motion made in the trial court or not. It is a jurisdictional question. An information is as prerequisite under such circumstances in the County Court as is the indictment in a felony prosecution in the District Court. To hold that a party could waive an information in the County Court would be equivalent to hold substantially that the party could waive an indictment in a felony prosecution. The invalidity of a prosecution originating in the County Court without an information has been decided so often and has become so thoroughly the settled law it is deemed unnecessary to discuss the matter or cite further authorities.

The judgment is reversed and the cause remanded.

Reversed and remanded.