Day v. State , 127 Tex. Crim. 19 ( 1934 )

Conviction for polluting a creek; punishment, a fine of $200.

This prosecution seems to have originated in the county court of Rusk County. The complaint was sworn to and filed in the office of the county clerk on September 8, 1933. If any information was filed, based on said complaint, same does not appear in the record. It appears in the judgment that appellant refused to plead to the charge contained in the complaint because there was no information. The same matter was complained of in appellant's motion for new trial.

Regardless of whether appellant had pleaded in person or not, the fact that no information was presented in the court below, and none appears in this record, — raised a jurisdictional question of which the court should have taken cognizance, and of which we do so take knowledge. Our Constitution and statute make necessary as a predicate for the filing of a prosecution originally in the county court, that there be an information, and the failure to file such information deprives the court below of its jurisdiction to try the case. Ethridge v. State, 76 Tex.Crim. Rep.; Norton v. State, 120 Tex. Crim. 557.

Because of the fact that there was no information, and the court below was without jurisdiction to try the case in the form in which it appears in this record, the judgment will be reversed and the cause remanded.

We make this order because of the fact that the prosecuting attorney may, if he desires, file an information upon the affidavit which appears in this record.

Reversed and remanded

ON STATE'S MOTION FOR REHEARING.