Hamilton v. State , 65 Tex. Crim. 508 ( 1912 )

This case was affirmed at a former day of this term in an opinion by Judge Prendergast, and as one of the questions arising in this case was discussed by the writer in an opinion in the case of Head v. State, 64 Tex.Crim. Rep., 141 S.W. Rep., 537, the record in the case was handed to him for further investigation on this question. In that case we held that if an indictment or information alleged a sale of intoxicating liquors was made in territory where prohibition had been adopted subsequent to the Act of the Legislature making it a felony to make a single sale of intoxicants, to give the County Court jurisdiction of the offense the complaint and information mustallege that the election had been held prior to the time the Act of the Legislature became effective making the offense a felony. In the Head case, the defendant filed a plea to the jurisdiction of the County Court before announcement for trial, the court overruled the plea, and we held the plea should have been sustained. To this holding we adhere, where the plea is filed before an announcement is made in the case. But where no plea is filed prior to announcement and prior to a verdict of the jury, a different question is presented. In this case no motion is filed to quash the information or to the jurisdiction of the court, alleging that the information did not contain an allegation showing it to "have been presented in a court having jurisdiction of the offense set forth." In this case the question is first raised after conviction in motion filed in arrest of judgment eight days after the verdict of the jury had been rendered and judgment entered.

Articles 825, 826, 827 and 828 of the Code of Criminal Procedure read as follows: "A motion in arrest of judgment is a suggestion to the court on the part of the defendant that judgment had not been legally rendered against him. The motion may be made orally or in writing, and the record must show the grounds of the motion. . . . The motion must be made within two days after the conviction; or, if the court adjourn before the expiration, then it may be made at any time before the final adjournment of court. . . . A motion in arrest of judgment shall be granted upon any ground which would be good upon exception to an indictment or information for any substantial defect therein. . . . No judgment shall be arrested for want of form." In McDaniel v. State, 24 Texas Crim. App., 552, Judge White, in speaking for the court, holds: "Exceptions, and the only exceptions, to the substance of an indictment in our practice are those enumerated in article 528 of the Code of Criminal Procedure, and all exceptions to form are specified in article 529. No such grounds as those here asserted are enumerated in the matters rendering an indictment defective for substance; they are matters of form only. ``A mere formal objection would not be reached by a motion in arrest of judgment.' (West v. The State, 6 Texas Crim. App., 485; Ferguson v. The State, id., 504; Bailey v. The State, 11 Texas Crim. App., 140; Niland v. The State, 19 Texas Crim. App., 166; Williams v. The State, id., 276; Weaver v. The State, id., 547; Williams v. The State, 20 Texas Crim. App., 357.) It was not error to overrule the motion." For other authorities so holding see White's Ann. Code of Crim. Proc., section 1174, where a long list is collated. It is thus seen, if the objection goes to "matters of form only," a motion in arrest of judgment is not the remedy, and such exceptions must be taken before trial of the case and motion in arrest of judgment must be filed in two days after final judgment is rendered in a cause. Of course, if the objection goes to the substance of an indictment, it can be taken advantage of at any time, but if it only goes to the form of an indictment it must be taken advantage of at the time and in the manner pointed out by our Code of Criminal Procedure. The reason for the difference in the rule is, that indictments or informations can not be amended in matters of substance, but can be amended in matters of form only, article 586 of the Code providing, "when an exception to an indictment or information is merely on account of form, the same shall be amended, if decided to be defective, and the cause proceed upon such amended indictment or information." See also articles 587 and 588 and subdivision 4 of section 588, White's Code of Crim. Proc., and authorities there cited. All objection to matters of form in the indictment or information must be made before announcement for trial, that they may be amended, if it is desired to do so, and defects in form only, can not be made available to set aside a judgment after verdict rendered. Thus the questions arises, is the allegation showing the jurisdiction of the court a matter of substance, or a matter of form? This question has been fully discussed by Chief Justice Roberts in the case of Matthews v. State, 44 Tex. 376, when the Supreme Court had jurisdiction in criminal cases: "The indictment in this case charges defendant with the theft of a gelding. It is difficult to imagine a plainer case than this seems to be, from the statement of facts contained in the transcript of the record. Still there are three distinct objections raised to the legality of the convictions, which require consideration. This is upon the principle that, however certainly a man may be guilty of an offense, he must not be punished for it until he is convicted according to the forms of law. "The defendant made a motion to set aside the indictment, ``because the indictment does not show in what court the same was found.' This, it will be observed, was an exception to the form of the indictment filed by the defendant and overruled previous to the trial of the case, that being the proper time to make such an exception. . . . In prescribing the exceptions allowed to be taken to the form of an indictment in order to have it set aside by the court as defective, the first one is, ``that the indictment does not appear to have been presented in the proper court, as required by article 395.' (Paschal's Dig., art. 2955.) Thus it appears that the indictment was defective in form in not containing such words as that it might ``appear therefrom that the same was presented in a court having jurisdiction of the offense set forth;' that the exception taken to it was allowed by law, and that it was taken in the proper manner and at the proper time. It was error in the court to overrule this exception thus presented, for which the judgment must be reversed. The court does not now perceive any good reason why this defect of form could not have been amended by motion of the district attorney. ``When the exception to an indictment is merely on account of form, the same shall be amended, if decided to be defective, and the cause proceed upon such amended indictment.' (Paschal's Dig., art. 2977.) This was done in the case of Bosshard v. The State (25 Texas Supp., 207-210), which was sanctioned by this court. Therefore this case will be remanded for further proceedings in the court below. In the case of Golden v. The State, 32 Tex. 738 [32 Tex. 738], this exception was taken in a motion in arrest of judgment, and it was decided not to be tenable. It is true the opinion in that case does not draw any distinction between the effect of making such an exception before and after the trial, still such distinction is plainly made in the Code of Criminal Procedure, as was shown in the case of John Terrell v. The State, decided at this term, wherein it was held that such an exception to the form of the indictment was not a good ground in a motion in arrest of judgment, it not having been made and ruled upon before the trial." This rule of decision has been followed in this State since that date. See Williams v. The State, 34 Tex. Crim. 100 (a case decided by Presiding Judge Davidson), and Townsend v. The State, 5 Texas Crim. App., 574, and cases cited in those decisions, and Myer v. State, and authorities there cited, decided at this term of court. The information not containing the allegation showing the County Court had jurisdiction of the offense being a matter of form only and not a matter of substance, being no part of the description of the offense, objection to it on account of that defect must have been made prior to an announcement in the case; it came too late and was not available as a ground to set aside the judgment in a motion in arrest of judgment.

In the Head case, hereinbefore referred to, when the plea was filed alleging that the information did not contain an allegation showing the jurisdiction of the court, had the county attorney asked and obtained leave of the court to amend it in that respect he should have been permitted to do so, but the court overruling the plea, it having been filed in due time, worked a reversal in the case. In this case the plea not having been filed until after verdict and judgment, it comes too late and presents no error. In so far as it may seem to appear in the decision in the Head case, by reversing and dismissing, that such a defect is not subject to amendment, it is not the law.

It is thus seen that if the indictment is defective in matter of substance, it can be questioned at any stage of the proceedings, but if the defect in the indictment is in matter of form only, the objection must be made before announcement for trial. The decisions of this court have been uniform in holding that to charge this offense in an indictment it is not necessary to allege the date of the election. (Coy v. State, 59 Tex. Crim. 379, 128 S.W. Rep., 414; Enriquez v. State, 60 Tex. Crim. 580, 132 S.W. Rep., 782, and authorities cited in Branch's Crim. Law, sec. 544.) It is thus seen that the allegation is not essential in defining the offense, and is not a matter of substance. Our Code fixes the jurisdiction of County and District Courts as a matter of law. So the allegation does not confer jurisdiction on the court and it is not a question of jurisdiction of the court over an offense. Even without a plea, if the evidence should show that the court trying the case under the law had no jurisdiction over it, objection could then be made. In this case it is not claimed that the County Court did not have jurisdiction over the offense alleged and tried, but only that the indictment did not contain an allegation as required by article 466 of the Code of Criminal Procedure, "that it shall appear therefrom to have been presented in the court having jurisdiction of the offense." Without this allegation the indictment is defective, but under all our decisions it is but a defect in matter of form and not of substance. The allegations in an indictment can not give jurisdiction to a court, if the evidence should develop that in law it had no jurisdiction. And as allegation can not confer jurisdiction, neither can it deprive a court of jurisdiction. In the case of Walker v. State, 7 Texas Crim. App., 52, this court, in passing on the clause: "It must appear therefrom that the same was presented in a court having jurisdiction of the offense," says such allegation is not one of substance, and does not go to the foundation of the proceeding, and holds that such matter is but a matter of form, and can be amended in that respect. Being but a matter of form and not of substance, the objection must be made before announcement for trial, that it may be amended in such respect if it is so desired. It is not contended that an indictment lacking in that allegation is not defective, but it is not a matter of substance; it is not a question of the jurisdiction of the court, for that is fixed by statute, but it is merely a matter prescribed that should be and must be complied with when objected to at the proper time.

Appellant insists that the court erred in striking out the statement of facts and bills of exception, and insists that this court is in error in so holding in the case of Misso v. State,61 Tex. Crim. 241, 135 S.W. 1173, and Mosher v. State,62 Tex. Crim. 42, 136 S.W. 467, and refers us to section 7 of the Official Stenographers' Act of 1909. His attention, apparently, has not been called to section 1 of that Act, which provides that only in the event official shorthand reporters are appointed, the terms of that Act shall apply. (See Acts of Thirty-First Legislature, page 374, being chapter 39.) All the other questions raised in the motion for new trial are discussed in the original opinion in this case, and the motion is overruled.

Overruled.