
    MORENO v. STATE.
    (No. 3768.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1915.)
    1. Indictment and Information <&wkey;87 — Time of Offense — Statute.
    Under White’s Ann. Code Cr. Proc. art. 4:60, subd. 6, providing that the time of the commission of the offense must be anterior to the filing of the information, an information filed April 7th, charging the offense of carrying a pistol to have been committed on April 1st, was sufficient.
    [Ed. Note. — For other eases, see Indictment and Information, Cent. Dig. §§ 244 — 255; Dee. Dig. <©=»87.]
    2. Indictment and Information <&wkey;86 — Requisites — Venue.
    In an information presented by the county attorney for Wise county in the county court of that county, charging that defendant “then and there” unlawfully carried a pistol, the words “then and there” related back to allegation as to the party by whom and the county in which it was presented, and sufficiently alleged venue.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 230-243; Dec. Dig. <®=vjS6.]
    3. Criminau Law &wkey;>1124 — Appeal—State - ment of Facts.
    Where no statement of facts accompanies the record, the Court of Criminal Appeals cannot pass on an exception complaining of error in not setting aside the verdict on ground of the insufficiency of the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2939, 2946-2948; Dea Dig. &wkey;1124.]
    4. Weapons &wkey;>17 — Offense — Sufficiency of Evidence.
    Evidence in a prosecution for unlawfully carrying a pistol, as shown by the trial court’s statement in approving the bill of exceptions, held sufficient to sustain a conviction.
    [Ed. Note. — For other eases, see Weapons, Cent. Dig. §§ 20, 22-33; Dec. Dig. <&wkey;17.]
    5. Criminal Law <©=51036 — Admission of Evidence-Time for Objection.
    In a prosecution for unlawfully carrying a pistol about April 1st, evidence that defendant was seen with a pistol in September previous, admitted without objection until after conviction, presented no error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1631-1640, 2639-2641; Dee. Dig. <&wkey;>1036.]
    Appeal from Wise County Court; J. W. Walker, Judge.
    Matilde Moreno was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed. "
    
      Spencer & Shults, of Decatur, and H. E. Lobdell, of Bridgeport, for appellant. C. C. McDonald, Asst. Atty. Gen., for tlie State.
   HARPER, J.

Appellant was convicted under the following information:

“In the name and by the authority of the state of Texas. M. W. Burch, county attorney of the county of Wise, state aforesaid, in behalf of said state, presents in the county court of said county, at the April term, 1915, of said court, that Matilde Moreno, on or about the 1st clay of April, A. D. 1915, did then and there unlawfully carry on and about his person, a pistol, against the peace and dignity of the state.”

After verdict, and after his amended motion for a new trial, appellant filed a motion in arrest of judgment on the grounds: (1) That the information does not allege that the offense was committed before the filing of the information; (2) that the information does not allege venue. The information shows to have been filed on April 7, 1915, and charges the offense to have been committed on April 1, 1915. April 1st is certainly anterior to April 7th. Subdivision 6 of article 466, White’s Ann. Code Ctf. Proe., provides: That the time of the commission of the offense be some date anterior to the filing of the information, and that the offense does not appear to be barred by limitation. It is only where the information is filed on the day the offense is alleged to have been committed that it is essential that it allege that the offense was committed prior to the filing of the information. If the date alleged and the filing of the information show that the date alleged is anterior to the filing of the information, this is in compliance with the statute. Wilson v. State, 15 Tex. App. 150, and cases cited under section S43, White's Ann. Code.

As to venue, we think the words “then and there” relate back to the allegation that “M. W. Burch, county attorney of Wise county, presents in the county court of said county,” and does allege venue. In the case of Vick v. State, 69 S. W. 156, an information in almost identical language was held to allege venue sufficiently. See, also, Moreno v. State, 64 Tex. Cr. R. 660, 143 S. W. 157, Ann. Cas. 1914C, 863, and authorities cited.

In the first bill of exception it is complained that the court erred in not setting aside the verdict on account of the insufficiency of the evidence. No statement of facts accompanies the record, therefore we cannot pass on this question. However, in approving the bill the court states:

“But two witnesses testified in the pase, both for the state. Mary Corona and Katie Rascoe. Both testified that they saw a white-handled, nickel-plated pistol in the hip pocket of defendant, in the town of Bridgeport, in Wise county, Tex., on the 1st day of April, A. D. 1915; that defendant came to the home of Katie Rascoe on said date, in company with Notsie Grill, who had been cut in the neck, and that defendant unwrapped a handkerchief from around the barrel of his pistol for the purpose of stanching the flow of blood from Notsie Grill’s neck. Both witnesses testified to seeing defendant have the same pistol on a different occasion on or about September, A. D. 1914. No objection to the charge or exception to the evidence or ruling of the court were reserved by defendant during the trial of said cause, and the case was submitted to the jury without argument.”

If but two witnesses testified in the case, and they both testified to seeing appellant with a pistol on April 1, 1915, the date alleged in the information, the evidence is certainly sufficient.

Appellant insists that it was fundamental error to permit the witnesses to testify that they saw appellant with a pistol on April 1, 1915, and also in September, 1914. No objection was made to the introduction of the testimony at the time it was admitted, nor at any other time until after verdict was rendered, consequently this presents no error. If the state should undertake to prosecute appellant a second time, by showing that the evidence adduced on this triajl embraced both dates, the judgment could be pleaded in bar to a second prosecution.

As no statement of facts accompanies the record, it would be useless to discuss the other questions presented, as none of them are of a character we can review with no facts before us.

The judgment is affirmed. 
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