Riley v. State

• Citation: 379 S.W.2d 79
• Decision Date: 01 April 1964
• Docket Number: No. 36696,36696
• Parties: Walter RILEY, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 79

379 S.W.2d 79

Walter RILEY, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 36696.

Court of Criminal Appeals of Texas.

April 1, 1964.

Josephine Clements, Russell F. Wolters, Houston, for appellant.

Frank Briscoe, Dist. Atty., Carl E. F. Dally, James I. Smith, Jr., and Theodore P. Busch, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Presiding Judge.

The complaint and information alleged that the appellant did 'drive and operate a motor vehicle: to-wit, an automobile, on a public street and highway--while his Texas license as a commercial operator was then and there suspended, having been suspended under the provisions of Article 6687b, Sec. 24, or Vernon's Annotated Texas Civil Statutes.'

Trial before the court on a plea of not guilty resulted in a judgment finding the appellant guilty and assessing his punishment at 5 days in jail and a fine of $50.

The evidence shown in the statement of facts reveals that on September 1, 1962, the appellant was driving an automobile on a public street in the City of Houston and was involved in a collision with a car driven by Minnie Bell. Police Officer L. Hoffman, Jr. investigated the collision and the appellant told him he had no driver's license.

Joe Dvorsky, hearing officer and Deputy Custodian of driving records for the Texas Department of Public Safety, produced the records as to the appellant which showed the most recent license was a commercial operator's license issued April 18, 1962. The records and the evidence show that such license was under suspension on September 1, 1962, by reason of a misdemeanor first offense D. W. I. conviction which became final on May 24, 1962.

The ground upon which reversal is sought is the contention that the trial court erred in overruling appellant's motion to quash the complaint.

The transcript contains no motion to quash the complaint or the information.

The complaint and information are regular on their face.

Art. 513, C.C.P. provides: 'All motions to set aside an indictment or information and all special pleas and exceptions shall be in writing.'

In the absence of a motion in writing, any issue as to the form of the information is not before us for review. Howard v. State, 157 Tex.Cr.R. 114, 247 S.W.2d 112; Crawford v. State, 165 Tex.Cr.R. 147, 305 S.W.2d 362; Redding v. State, 166 Tex.Cr.R. 517, 316 S.W.2d 724.

If, despite the statute and the authorities cited, the claimed error in the overruling of the oral motion to quash is before us, the motion is without merit and the overruling thereof presents no error.

The judgment is affirmed.

McDONALD, Judge (concurring).

While appellant did not effectively get before us his contention, he did get before us by brief and oral argument the two cases in support of his position. The two cases relied upon by counsel and which he refers to as 'landmark cases' are the well known 'stomping' and 'drowning' cases of Northern v. State, 150 Tex.Cr.R. 511, 203 S.W.2d 206 and Gragg v. State, 148 Tex.Cr.R. 267, 186 S.W.2d 243. In the Northern case this Court held that an indictment charging that the defendant killed deceased by kicking and stomping her without charging that defendant stomped with his feet was fatally defective as failing to charge the means employed in commission of the offense. In the Gragg case it was held that an indictment charging that the defendant with malice killed...