Casper v. State , 114 Tex. Crim. 557 ( 1929 )

In view of the fact that appellant has now filed a proper appeal bond, the dismissal of the appeal is set aside and the case considered upon its merits.

The offense was one apparently originating in the county court at Cherokee county, which we presume to have been the court in which the case was originally filed, the offense being one which carries with it a punishment not within the jurisdiction of a justice court. Our attention is called to the fact that no information appears to have been filed presenting the offense in the trial court. We find nothing in the record save a complaint. Mr. Branch in Sec. 519 of his Annotated P. C., cites many authorities supporting the proposition that if the record on appeal fails to contain the information, etc., the judgment will be reversed. Garza v. State, 11 Texas Crim. App. 410; Sponberg v. State, 60 Tex.Crim. Rep.; Jennings v. State, 30 Tex.Crim. Rep.. If no information was filed in the trial court, the prosecution was improperly instituted, and for this reason the judgment should be reversed. Stepp. v. State, 53 Tex.Crim. Rep.; Johnson v. State, 17 Texas Crim. App. 230. Art. 29, C. C. P. specifically provides that upon the filing of a misdemeanor complaint, the attorney for the State shall prepare an information based on such complaint, and file same in the court having jurisdiction. There being no information in this record, this court is without jurisdiction to enter final judgment. Upon the return of the mandate of this court to the trial court, if the State desires to further prosecute, an information could then be prepared and filed with the complaint and a trial be properly had.

The judgment will be reversed and the cause remanded.

ON MOTION FOR REHEARING.