
    WEST v. STATE.
    (No. 10899.)
    Court of Criminal Appeals of Texas.
    May 11, 1927.
    Rehearing Denied Feb. 8, 1928.
    1. Criminal law <§=>1182 — Judgment will be affirmed where record is before reviewing court without statement of facts or bills of exceptions and no fundamental error is perceived.
    Judgment will be affirmed where the record is before the reviewing court without statement of facts or bills of exception, where complaint and information appear regular, and no fundamental error is perceived.
    On Motion for Certiorari to Correct Record.
    2. Indictment and information <§=>43 — Clerk’s failure to place file mark on complaint does not vitiate it.
    The mere failure of the clerk to place file mark on a complaint does not vitiate it.
    3. Indictment and information <§==>43 — Delivery of complaint to clerk is “filing” in law.
    A delivery of complaint to the clerk is, in law, a “filing” of the complaint.
    [Ed. Note. — For other definitions, see Words and Bhrases, First and Second Series, File.]
    4. Criminal law <§=>1110(8) — On motion for certiorari to correct record, reviewing court must presume, in support of trial court’s ruling, complaint was in fact delivered to clerk.
    Where, on motion for certiorari to correct record as to filing of complaint, it appeared that trial court had heard evidence as to proper filing of complaint, and neither the record nor the motion for certiorari rebutted the presumption of law that the trial court’s ruling was correct, the reviewing court was required to presume that the complaint was in fact delivered to the clerk as trial court’s ruling would indicate.
    5. Indictment and information <§=>43 — Filing mark on information will be considered as relating to information and complaint where they are presented at same time.
    Where a complaint and information are attached together and presented at the same time, the file mark on the information will be considered as relating to both papers.
    6. Indictment and information <§=>43 — Where clerk fails to make indorsement of filing on complaint when presented, court may thereafter permit him to indorse as of filing date.
    If the clerk fails to make indorsement of filing on the complaint when same is presented to him, the court may thereafter permit him to make indorsement as of date of filing.
    7. Criminal law <§=>970(1) — Indictment and information <§=>l33(1) — Objection <to want of filing mark on complaint must be by motion to quash and cannot be raised by motion in arrest.
    A motion to quash because there is no file mark on the complaint must be made before the trial, and the point cannot be raised by motion in arrest of judgment.
    8. Criminal law <§=>! 110(8) — Certiorari to correct-record would be refused where it appeared that even if record were perfected it would present no error upon which appellant could rely.
    Where defendant was convicted for unlawfully carrying a pistol, and, after affirmance of conviction, he filed a motion for- certiorari to correct the record on appeal, held that since it appeared that even if the record were perfected in the respects pointed out it would present no error and would be an altogether useless procedure, certiorari should be refused.
    Appeal from Grimes- County Court; Ralph W. Barry, Judge.
    R. M. West was convicted for unlawfully carrying a pistol, and he appeals. Affirmed.
    S. W. Dean, of Navasota, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M.
    Lyles, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The conviction is for unlawfully carrying a pistol; punishment fixed at a fine of $100.

The record is before us without statement of facts or bills of exceptions. The complaint and information appear regular. No fundamental error having been perceived or pointed out, the judgment is affirmed.

On Motion for Certiorari to Correct Record.

MARTIN, J.

Appellant has filed motion for writ of certiorari to correct the record on appeal in the following respect:

It is alleged by him that the' record has been changed and the file mark placed on the complaint long after the filing of this case in the county court, in that the information was filed in the county court on February 24, 1926, and no complaint was filed until September 2,1926. By certificate of the county clerk it is shown that his name, that is, the name of the county clerk, was above the file mark prior to September 2, 1926, and that on or after that date he placed his name under the date of filing. The complaint is marked, “Filed February 24, 1926,” which date is contemporaneous with the date shown on the information. In other words, the record shows that a correct file mark was in fact on the complaint, but the name of the clerk was above the same instead of below, until on or after September 2, 1926.

Motion in arrest of judgment was made and overruled, and the order overruling said motion recites that evidence was heard.

The mere failure of the clerk to place a file mark on the complaint does not vitiate it. Stalcup v. State, 99 Tex. Cr. R. 415, 269 S. W. 1044. The delivery of the complaint to the clerk is a filing in law. Brog-don v. State, 63 Tex. Cr. R. 475, 140 S. W. 352. The court seems to have heard evidence on this matter, and nothing is shown in the record or in the motion to rebut the presumption of law that his ruling was correct. In support of his ruling we must presume that the complaint was in fact delivered to the clerk, which would be a sufficient filing in law even if the clerk had never placed a file mark on it. Authorities, supra. Then, again, if the complaint and information had been attached together and presented at the same time, the file mark on the information will be considered as relating to both papers. Stinson v. State, 5 Tgx. App. 31; Stalcup v. State, 99 Tex. Cr. R. 415, 269 S. W. 1044. For full collation. of authorities see article 415, Vernon’s C. C. P. vol. 1, p. 317.

If the clerk failed to make an in-dorsement of filing on the complaint when same was presented to him, the court may thereafter permit him to do so as of date of filing. Brogdon v. State, 63 Tex. Cr. R. 475, 140 S. W. 352. Besides a motion to quash because there is no file mark on the complaint must be made before the trial and the point cannot be raised by motion in arrest of judgment. Jessel v. State, 42 Tex. Cr. R. 72, 57 S. W. 826.

It therefore appears that if the record were perfected in the respects pointed out, it would present no error and would be an altogether useless procedure and waste of time. The motion is therefore accordingly overruled.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of. the Court of Criminal Appeals and approved by the court. 
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