Opinion
No. 24637.
February 22, 1950.
Information — Fatally Defective.
An information which does not allege that the offense was committed before the information was filed is fatally defective.
Driving While Intoxicated. Appeal from the county court of Scurry County; penalty, fine of $500.
Hon. Edgar Taylor, Judge Presiding.
Reversed and Remanded — Prosecution Ordered Dismissed.
H. J. Brice, Snyder, and C. C. McDonald, Wichita Falls, for appellant.
George P. Blackburn, State's Attorney, Austin, for the state.
Conviction was for driving a motor vehicle on a public highway in Scurry County while intoxicated. A jury found appellant guilty and assessed the punishment at a fine of $500.00.
Prosecution was by complaint and information, both of which were filed on June 11, 1949. The offense is alleged to have occurred on June 11, 1949. There is no allegation in the information that the offense was committed before the information was filed. This defect is fatal. The trial court should have sustained appellant's motion to quash the information. See Art. 414 C. C. P., Sub. 6; Branch's Ann. Tex. P. C., Sec. 433, p. 230 and cases cited therein; Phariss v. State, 136 Tex.Crim. R., 126 S.W.2d 981; Id., 137 Tex. Crim. 98, 128 S.W.2d 415; Cobb v. State, 139 Tex. Cr. 337, 139 S.W.2d 272; Hoot v. State, 149 Tex.Crim. R., 194 S.W.2d 97; Martini v. State, 150 Tex.Crim. R., 205 S.W.2d 988.
The complaint is not subject to the defect pointed out in the information. If the state so desires a new information based on the complaint could be filed. Under the record as it now appears it is imperative that the judgment be reversed and the cause remanded, with the further order that the prosecution be dismissed under the present information.