Ellis v. State
| Decision Date | 25 May 1910 |
| Parties | ELLIS v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Upshur County Court; Albert Maberry, Judge.
Hugh Ellis was convicted of violating the local option law, and he appeals. Reversed and remanded.
John A. Mobley, Asst. Atty. Gen., for the State.
This appeal is prosecuted from a conviction had in the county court of Upshur county on the 8th day of July, 1909, finding appellant guilty of unlawfully selling intoxicating liquors in violation of law in said county, and assessing his punishment at a fine of $25 and 20 days' confinement in the county jail.
1. When the case was called, appellant filed a motion questioning the jurisdiction of the county court of Upshur county to try the cause, for the reason that the order transferring the indictment therein from the district court of said county was insufficient and invalid. This order is as follows: Accompanying it was a bill of costs, giving the same number, and it also bore the following indorsement of the district clerk: —as well as the file mark of the county clerk of Upshur county, dated 22d day of June, 1909.
Article 473 of our Code of Criminal Procedure of 1895 is as follows: "It shall be the duty of the clerk of the district court, without delay, to deliver the indictments in all cases transferred, together with all the papers relating to each case, to the proper court or justice of the peace, as directed in the order of transfer, and he shall accompany each case with a certified copy of all the proceedings taken therein in the district court, and also with a bill of the costs that have accrued therein in the district court, and the said costs shall be collected in the court in which said cause is tried, in the same manner as other costs are collected in criminal cases." It seems to be beyond doubt true that the indictment reached the proper court, accompanied with a bill of costs, as required by law. This article does not set out in any detail the matters required to be stated in the order. If we look to the number of the case, and the indorsement of the clerk on the order accompanying same, it gives the correct number of the cause, as well as the style of the case, and fairly meets all the requirements of the law. It will be noted that this order recites that the county court of Upshur county has jurisdiction of the same, and that the word "court" is omitted after the word "county" in the last line of the order. As was said in the case of Dittfurth v. State, 46 Tex. Cr. R. 424, 80 S. W. 628: "It has been held that, in the transfer of cases, a general order, giving the numbers in the district court and character of offense is sufficient, and that a particular order is not necessary in each case." Forbes v. State, 35 Tex. Cr. R. 24, 29 S. W. 784; Tellison v. State, 35 Tex. Cr. R. 388, 33 S. W. 1082; Malloy v. State, 35 Tex. Cr. R. 389, 33 S. W. 1082. And it was also said: "When this case got into the county court, it was given another number in that court." It was also objected in the Dittfurth Case that the transfer there was insufficient, in that it did not purport to transfer the case to the county court of Karnes county. This objection was treated as trivial, and the court says: "From the recitations, it is sufficiently certain that the transfer was made to said county court of Karnes county." So there would seem to be no doubt in this case that it sufficiently appears that the case was intended to be transferred, and that the order had the effect to transfer the case, to the county court of Upshur county.
2. During the trial, while the appellant was upon the...
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