Starbeck v. State

• Decision Date: 11 March 1908
• Citation: 109 S.W. 162
• Parties: STARBECK v. STATE.
• Court: Texas Court of Criminal Appeals

Page 162

109 S.W. 162

STARBECK v. STATE.

Court of Criminal Appeals of Texas.

March 11, 1908.

On Rehearing, April 15, 1908.

Appeal from Jones County Court; Jas. P. Stinson, Judge.

H. Starbeck was convicted of violating the local option law, and appeals. Affirmed.

Brooks & Scott, for appellant. F. J. McCord, Asst. Atty. Gen., and J. C. Randel, Co. Atty., for the State.

RAMSEY, J.

Appellant was convicted in the county court of Jones county for unlawfully selling intoxicating liquor in violation of the local option law. There are several questions raised on appeal, which we will now consider.

First, it is claimed that the affidavit and information filed against appellant did not charge him with committing any offense against the laws of this state. The particular defect claimed in the affidavit and information is that they do not in express terms aver that the commissioners' court of Jones county had declared the result of the prohibition election held in said county. The charging part of the affidavit is that "appellant did then and there unlawfully sell to Joe Milstead intoxicating liquor after the qualified voters of said Jones county had determined, at an election held in accordance with the laws of the state of Texas, that the sale of intoxicating liquor should be prohibited in said Jones county, and after the commissioners' court of said Jones county had passed an order declaring the result of said election and prohibiting the sale of intoxicating liquor in said Jones county, and after said order had been published by the county judge of said county, as required by law." We think the affidavit and information are much fuller than that held good by this court in the case of Shilling v. State, 51 S. W. 240, and that this assignment must be overruled.

It is next claimed that the court erred in overruling appellant's motion to quash the affidavit and information on the ground that neither was filed at the time the motion was made. The facts in respect to this matter are, as we gather from the record, that the affidavit and information in this case were in fact prepared by the county attorney of Jones county, and by him delivered to the county clerk of that county on the 2d day of April, 1907; the county attorney at the time calling for a capias for the arrest of appellant. The county clerk testified that he did not remember the fact of the papers being delivered to him, and there was no file mark by him indorsed on either the affidavit or information; but they bear the style and number of the case. The clerk further testified that he must have docketed and issued the capias and numbered the papers in said cause, since all this is in his handwriting. He also states that all the papers in that case had the proper style and number, and the said affidavit and information had said style and number of the case. He also testified that the file docket shows that the case was filed on the 2d day of April, 1907. We think these facts sufficient to show that the affidavit and information had been filed in the legal sense—that is, delivered to the county clerk as papers in said cause, with the intent and purpose that they should be kept among and treated as the papers in the case; and where, in such case, the clerk has merely failed to make the notation of file, the court is authorized upon sufficient evidence to order the proper file mark indorsed upon the complaint and information by the clerk nunc pro tunc. This has been so repeatedly authorized and held in this state that there can be no question about the propriety of this practice. Beal's Adm'r v. Alexander, 6 Tex. 537; Holman v. Chevaillier, 14 Tex. 339; Nelson v. State (Tex. Cr. App.) 101 S. W. 1012; Enc. of Pleading & Practice, vol. 8, pp. 923-927; Cowan v. Ross, 28 Tex. 230; Adams v. State (Tex. Cr. App.) 85 S. W. 1080.

It is contended, however, in this same connection that, if the affidavit and information could be ordered filed nunc pro tunc, nevertheless appellant was entitled to two days after the affidavit and information was so ordered filed to prepare his defense and pleadings before he could be required to go to trial. It is not denied that under the statute of this state, as well as the repeated decisions of this court (Johnson v. State, 49 S. W. 618), every defendant in all cases shall be allowed two entire days, exclusive of all fractions of a day, after his arrest and during the term of court, to file written pleadings. It will be noted that the two days allowed is after his arrest. As stated,...