
    HALL v. STATE.
    (Court of Criminal Appeals of Texas.
    April 23, 1913.)
    1. Indictment and Information (§ 43) — Filing — Nunc Peo Tunc.
    On motion in arrest it was urged that the information did not charge that the crime was committed before presenting the information. The information, as well as the complaint, sworn to on October 2d, charged the offense to have been committed on September 28th. The information bore no file mark, but it was shown to have been in fact filed on the same day as the complaint. Held, that the court properly ordered the information to be filed. nunc pro tunc as of October 2d.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 154; Dee. Dig. § 43.*] .
    2. Indictment and Information (§ 133*) — Defects — Remedy.
    The defect in an information bearing no file mark, and not specifically charging that the offense was committed before presentation, cannot be taken advantage of by motion in arrest, but only by motion to quash.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 454-468; Dec. Dig. § 133.*]
    3. Cbiminal Law (§ 1099*) — Appeal—Statement oe Facts — Time fob Filing.
    Where defendant was convicted at a term of the county court which adjourned January 4th, his statement of facts filed February 3d was too late; the 30-day time for filing statements of facts not applying to the county court, but where an order of court allows any time after adjournment in which to file a statement of facts the limit of such time is 20 days.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.*]
    Appeal from Anderson County Court; Adam Cone, Judge.
    Roy Hall was convicted of violating the pistol- law, and he appeals.
    Affirmed.
    J. E. Rose and Jno. R. Moore, both of Palestine, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of violating the pistol law.

Motion was made in arrest of judgment, because the information does not specifically allege that the offense had been committed anterior to the presentment of the information; that it does not use the word “anterior,” or its equivalent, “heretofore.” The information alleges the offense to have been committed on 28th of September, 1912. The complaint alleges the same date. The complaint was sworn to on the 2d day of October, 1912. The information bore no file mark, but, upon motion in arrest of judgment, the facts show with reasonable certainty that it was filed the same day on which the complaint was filed, to wit, October 2d.

The court ordered that the information be filed nunc pro tune as of October 2d. The case was tried during the month of October. The court had the authority to order the filing nunc pro tune.

Further replying to this motion in arrest of judgment, it will be noticed under all the decisions that this matter cannot be taken advantage of by motion in arrest of judgment; that is, with reference to the filing. These matters must come on motion to quash. See Branch’s Criminal Law, § 888. We are of opinion that, in reference to these matters, there is no merit, and the law is against appellant’s contention.

It is also urged that the evidence is not sufficient to support the conviction. If the facts could be considered, there is substantial merit in this contention; but we are not authorized to consider the statement of facts because it was filed too late. Court adjourned on January 4, 1913, and the statement of facts was not filed until February 3, 1913. Under the law applicable to filing statement of facts in county court the 30-day time does not apply. Several decisions have recently so held. We cannot therefore review the evidence. It may be further stated there is no order in the record entered by the court allowing any time after adjournment of court in which to file statement of facts. It seems, under the statute, that if an order was entered, the limit would be 20 days1 after the adjournment of court It may be also stated, in this connection, that there is no showing made as to why the statement of facts was not filed in accordance with the statute.

As the record is presented to this court, it is considered that the judgment should be affirmed, and it is, accordingly, so ordered.  