
    ZINN v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 13, 1912.
    On Motion for Rehearing, Dec. 4, 1912.)
    Indictment and Information (§ 70) — Sufficiency of Accusation — Charging Offense.
    An information by a county attorney, upon affidavit attached, presenting that defendant unlawfully bet at a game of cards at a place not then and there a private residence occupied by a family, and that affiant had reason to believe and did believe that defendant then played at cards at a place not then and there a private residence, is defective, in that it does not present to the court that accused had violated a law, but only that some affiant charged him with committing the offense.
    [Ed. Note. — For other eases, see Indictment and Information, Cent. Dig. § 192; Dec. Dig. § 70.]
    Appeal from Hamilton County Court; R. Q. Murphree, Judge.
    Ollie Zinn was convicted of a violation of the gaming laws, and he appeals.
    Reversed, and prosecution dismissed.
    S. R. Allen, of Hamilton, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

This is a conviction for a violation of the gaming laws.

The statement of- fa-cts and bills of exception were filed'after the adjournment of court. The case being appealed from the county court, there must be an order, entered of record, authorizing the filing of these papers after term time, in order to authorize this court to consider and review them. In the absence of these matters, there is nothing which the court can intelligently revise.

The judgment is ordered to be affirmed.

On Motion for Rehearing.

On a former day of the term the appeal herein was affirmed, without reference to the statement of facts. It is shown now the statement of facts was filed within the 20 days allowed by the court, and will be considered.

The motion for rehearing calls our attention to the fact that we overlooked the motion to quash and in arrest of judgment, contending that the information is not sufficient. The information charges as follows: “In the name and by the authority of the state of Texas, now comes P. M. Rice, county attorney of Hamilton county, Texas, upon affidavit of J. E. Beck, hereto attached and made a part hereof and in behalf of said state presents in the county court of Hamilton county, Texas, at the April term, 1912, of said court, that heretofore to wit, on' or about the 13th day of November, 1911, in said county of Hamilton and state of Texas, .one Ollie Zinn did then and there unlawfully bet at a game of cards at a place not then and there a private residence occupied by a family. * * * And the affiant aforesaid upon his oath aforesaid further deposes and says that he has reason to believe and does believe that heretofore, to wit, on or about the 13th day of November, 1911, in said county of Hamilton, state of Texas, one Ollie Zinn did then and there play at a game of cards at a place not then and there a private residence occupied by a family, contrary,” etc. The contention is made that, the information does Dot present in the court, under the last count mentioned and quoted, that appellant had violated the law; that it only presents to the court that the affiant further deposes and says:

This is not sufficient. The information may allege that the affidavit was filed, but it must allege that the , county attorney presented in the court that appellant did the prohibited thing. It is not sufficient to present that there was an affidavit filed to the effect that appellant committed the offense, but the county attorney must directly present the fact that he charges and presents in the court that appellant did the act of which complaint is made. The first count in the information was properly presented; but it does not present that appellant, on either of the subsequent counts in the information, committed the offense. It only states the fact that the affiant, whoever he may have been, charged appellant with committing the offense. It nowhere, in connection with the third count, presents that appellant violated the law as charged in that count.

For this reason, the judgment is reversed, and the prosecution is ordered dismissed.  