
    HAMILTON v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 10, 1912.
    On Motion for Rehearing, March 20, 1912.)
    1. Criminal Law (§ 1099) — Bills of Exceptions — Time fob Filins.
    Statements of fact and bills of exceptions, filed after term time, without an order authorizing such filing, will be stricken out on motion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    2.- Intoxicating Liqtjobs (§ 111) — Statutory Pbovisions.
    Pen. Code 1895, art. 402, making the unlawful sale of intoxicating liquors a misdemean- or, was not repealed by the vagrancy act (Acts 31st Leg. c. 59), defining and punishing vagrants.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 121; Dec. Dig. § 111.]
    3. Intoxicating Liquors (§ 111) — Statutory Provisions.
    Pen. Code 1895, art. 402, making the sale of intoxicating liquors in prohibition territory a misdemeanor, was not repealed by the act of April 24, 1909 (1st Ex. Sess.) c. 35, making such sale a felony, article 402 applying where elections putting prohibition into effect were held before the passage of the act of 1909, and that act applying where the elections were held subsequent thereto.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 121; Dec. Dig. § 111.]
    On Motion for Rehearing.
    4. Criminal Law (§’974) — Objections to Form — Waiver.
    An objection that an information for selling intoxicating liquors in prohibition territory does not show that the election putting prohibition into effect was held before the passage of the Act of April 24, 1909, c. 35, making such sale a felony, is an objection to the form of the information, and to be available an exception must be taken before announcement for trial and a motion in arrest of judgment filed within two days after judgment, as required by Code Or. Proc. 1895, art. 826, and a conviction under such an information will be sustained where the information is first attacked by a motion in arrest of judgment filed eight days after judgment.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2469-2478; Dec. Dig. §• 974.]
    5. Indictment and Information (§§ 159, 161) — Amendments—Form or Substance.
    Indictments and informations can be amended in matters of form under the direct provisions of Code Cr. Proc. 1895, art. 586, but not in matters of substance.
    [Ed. Note. — For other eases, see Indictment and Information, Cent. Dig. §§ 505-514, 516-523; Dec. Dig. §§ 159, 161.]
    6. Criminal Law (§ 105) — Indictment and Information (§ 133) — Objections — Time for Taking.
    If a court has no jurisdiction of a criminal case, objection on that ground may be made at any time, but an objection merely that the indictment or information does not show such jurisdiction is an objection to the form and must be taken as prescribed in the Code of Criminal Procedure.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 216-218; Dec. Dig. § 105 ;* Indictment and Information, Cent. Dig. §§ 454— 468; Dee. Dig. § 133.]
    7. Criminal Law (§§ 1092, 1099) — Time for Filing.
    The Official Stenographers’ Act of 1909 (Acts 31st Leg. [1st Ex. Sess.] c. 39) § 7, providing that on an appeal from the district or county court the parties shall have thirty days after adjournment of court in which to prepare and file a statement of facts and bills of exception, by the express provisions of section 1 of that act only applies where official shorthand reporters have in fact been appointed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919,. 2866-2880; Dec. Dig. §§ 1092, 1099.] Davidson, P. X, dissenting in part.
    Appeal from McLennan County Court;. Tom L. McCullough, Judge.
    Tom Hamilton was convicted of unlawfully-selling intoxicating liquors, and he appeals-
    Affirmed.
    H. L. Taylor and J. W. Taylor, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER i: i Dec. Dig. & Am. Dig. Key No. Series & Rep’r indexes-
    
   PRENDERGAST, J.

On May 26, 1910,. information and complaint were properly filed against the appellant charging him with unlawfully selling intoxicating liquor to one Damon in justice precinct No. 7 of McLennan county, after prohibition had therein been properly carried, declared, and published. He was tried and convicted June ■9, 1910, and his punishment fixed at a fine ■of $100 and 20 days in jail.

The court at which he was tried convened on May 2, 1910, and adjourned June 18, 1910. The purported statement of facts and hills of exceptions in this case were filed July 5, 1910. The record shows no order entered authorizing the statement of facts or hills of exceptions to he filed after term time. The Assistant Attorney General has made a motion to strike them out on that account. Under the long and uniform holding of this court, the said motion must he sustained and the purported statement of facts • and the bills of exceptions stricken out. Misso v. State, 135 S. W. 1173; Blackshire v. State, 33 Tex. Cr. R. 160, 25 S. W. 771; Dement v. State, 39 Tex. Cr. R. 276, 45 S. W. 917; Williams v. State, 35 Tex. Cr. R. 391, 33 S. W. 1080; Irby v. State, 34 Tex. Cr. R. 283, 30 S. W. 221; Mosher v. State, 136 S. W. 467; Griffin v. State, 136 S. W. 778; Moore v. State, 136 S. W. 1067; Gentry v. State, 137 S. W. 696.

No question raised by the bills of exceptions on the introduction or exclusion of testimony can therefore be considered by us.

There are two questions, however, raised by the motion of the appellant to quash the information and complaint and to arrest the judgment which it is necessary for us to decide. The first is appellant contends that the vagrancy act repeals the prohibition act under which appellant was prosecuted. This question was fully discussed and decided against appellant in the case of Parshall v. State, 138 S. W. 759.

The other question is appellant contends that the act of April 24, 1909 (1st Ex. Sess.) p. 356, making it a felony to unlawfully sell intoxicating liquors in prohibition territory, repealed the old article 402 of the Penal Code which made such sale a misdemeanor only.

In the case of Lewis v. State, 58 Tex. Cr. R. 351, 127 S. W. 808, 21 Ann. Cas. 656, and some cases since that decision following it, this court held that said act of 1909 did not repeal said article 402 because it was not the intention of the Legislature that the felony statute should apply where the elections were held putting prohibition in effect before the act of 1909. Since the Thirty-Second Legislature, in passing the revised Criminal Codes, has distinctly, in the new revised Code (now article 597), enacted the effect of the decision in the Lewis Case, whereby it is made a misdemeanor only to illegally sell intoxicating liquors in prohibition territory where the election was held prior to the act of 1909, and a felony in such territory where elections are held since then, we are constrained to hold that appellant’s contention is not correct.

The writer is of the opinion that the Legislature has the power and authority to Change the penalty whether prohibition has been put in force by an election held prior or subsequent to the enactment of the law, if the legislative enactment clearly shows such intent by the Legislature. And, as he understands the Constitution, he would not be bound by the Lewis Case, supra, or any case subsequently following it, if the Legislature should clearly enact otherwise.

There being no reversible error pointed out, the judgment will be affirmed.

On Motion for Rehearing.

HARPER, J.

This case was affirmed at a former day of this term in an opinion by Judge PRENDERGAST and as one of the questions arising in this case was discussed by the writer in an opinion in the case of Head v. State, 141 S. W. 537, the record in the case was handed to him for further investigation on this question. In that case we held that, if an indictment or information alleged a sale of intoxicating liquors was made in territory where prohibition had been adopted subsequent to the act of the Legislature making it a felony to make a single sale of intoxicants, to give the county court jurisdiction of the offense the complaint and information must allege that the election had been held prior to the time the act of the Legislature became effective, making the offense a felony. In the Head Case, the defendant filed a plea to the jurisdiction of the county court before announcement for trial, the court overruling the plea, and we held the plea should have been sustained. To this holding we adhere where the plea is filed before an announcement is made in the case. But where no plea is filed prior to announcement and prior to a verdict of the jury, a different question is presented. In this case no motion is filed to quash the information or to the jurisdiction of the court, alleging that the information did not contain an allegation showing it to “have been presented in a court having jurisdiction of the offense set forth.” In this case the question is first raised after conviction in motion filed in arrest of judgment eight days after the verdict of the jury had been rendered and judgment entered.

Articles 825, 826, 827, and 828 of the Code of Criminal Procedure read as follows: “A motion in arrest of judgment is a suggestion to the court on the part of the defendant that judgment had not been legally rendered against him. The motion may be made orally or in writing, and the record must show the grounds of the motion. * * * The motion must be made within two days after the conviction; or, if the court adjourn before the expiration, then it may be made at any time before the final adjournment of court. * * * A motion in arrest of judgment shall be granted upon any ground which would .be good upon exception to an indictment or information for any substantial defect therein. * * * No judgment shall be arrested for want of form.” In McDaniel v. State, 24 Tex. App. 558, 7 S. W. 250, Judge White, in speaking for the court, holds:' “Exceptions, and the only exceptions, to the substance of an indictment in our practice are those enumerated in article 528 of the Code of Criminal Procedure, and all exceptions to form are specified in article 529. No such grounds as those here asserted are enumerated in the matters rendering an indictment defective for substance; they are matters of form only. ‘A mere formal objection would not be reached by a motion in arrest of judgment.’ West v. State, 6 Tex. App. 485; Ferguson v. State, Id. 504; Bailey v. State, 11 Tex. App. 140; Niland v. State, 19 Tex. App. 167; Williams v. State, Id. 277; Weaver v. State, 19 Tex. App. 547, 53 Am. Rep. 389; Williams v. State, 20 Tex. App. 357. It was not error to overrule the motion.” For other authorities so holding see White’s Ann. Code of Crim. Proc. § 1174, where a long list is collated.

It is thus seen, if the objection goes to “matters of form only,” a motion in arrest of judgment is not the remedy, and such exceptions must be taken before trial of the case and motion in arrest of judgment must be filed in two days after final judgment is rendered in a cause. Of course, if the objection goes to the substance of an indictment, it can be taken advantage of at any time, but if it only goes to the form of an indictment it must be taken advantage of at the time and in the manner pointed out by our Code of Criminal Procedure.

The reason for the difference in the rule is that indictments or informations cannot be amended in matters of substance, but can be amended in matters of form only; article 586 of the Code providing: “When an exception to an indictment or information is merely on account of form, the same shall be amended, if decided to be defective, and the cause proceed upon such amended indictment or information.” See, also, articles 587 and 588 and subdivision 4 of section 588, White’s Code of Crim. Proc., and authorities there cited. All objections to matters of form. in the indictment or information must be made before announcement for trial, that they may be amended, if it is desired to do so, and defects in form only cannot be made available to set aside a-judgment after verdict rendered. Thus the question arises, Is the allegation showing the jurisdiction of the court a matter of substance, or a matter of form? This question has been fully discussed by Chief Justice Roberts in .the case of Mathews v. State, 44 Tex. 376, when the Supreme Court had jurisdiction in criminal cases: “The indictment in this case charges defendant with the theft of a gelding. It is difficult to imagine a plainer case than this seems to be, from the statement of facts contained in the transcript of the record. Still there are three distinct objections raised to the legality of the conviction which require consideration. This is upon the principle that, however certainly a man may be guilty of an offense, he must not be punished for it until he is convicted according to the forms of law. The defendant made a motion to set aside the indictment, ‘because the indictment does not show in what court the same was found.’ This, it will be observed, was an exception to the form of the indictment filed by the defendant and overruled previous to the trial of the case, that being the proper time to make such an exception. * * * In prescribing the exceptions allowed to be taken to the form of an indictment in order to have it set aside by the court as defective, the first one is ‘that the indictment does not appear to have been presented in the proper court, as required by article 395.’ Paschal’s Dig. art. 2955. Thus it appears that the indictment was defective in form in not containing such words as that it might ‘appear therefrom that the. same was presented in a court having jurisdiction of the offense set forth’; that the exception taken to it was allowed by law, and that it was taken in the proper manner and at the proper time. It was error in the court to overrule this exception thus presented, for which the judgment must be reversed. The court does not now perceive any good reason why this defect of form could not have been amended by motion of the district attorney. ‘When the exception to an indictment is merely on account of form, the same shall be amended, if decided to .be defective, and the cause proceed upon such amended indictment.’ Paschal’s Dig. art. 2977. This was done in the case of Bosshard v. State, 25 Tex. Supp. 207-210, which was sanctioned by this court. Therefore this case will be remanded for further proceedings in the court below. In the case of Golden v. State, 32 Tex. 737, this exception was taken in a motion in attest of judgment, and it was decided not to be tenable. It is true the opinion in that case does not draw any distinction between the effect of making such an exception before and after the trial, still such distinction is plainly made in the Code of Criminal Procedure, as was shown in the case of John Terrell v. State [41 Tex. 463], decided at this term, wherein it was held that such an exception to the form of the indictment was not a good ground in a motion in arrest of judgment, it not having been made and ruled upon before the trial.” This rule of decision has been followed in this state since that date. See Williams v. State, 34 Tex. Cr. R. 100, 29 S. W. 472 (a case decided by Presiding Judge Davidson), and Townsend v. State, 5 Tex. App. 574, and cases cited in those decisions, and Meyer v. State, 145 S. W. 919, and authorities there cited, decided at this term of court. The information not containing the allegation showing the county court had jurisdiction of the offense being a matter of form only and not a matter of substance, being no part of the description of the offense, objection to it • on account of that defect must have been made prior to an announcement in the case; it came too late and was not available as a ground to set aside the judgment in a motion in arrest of judgment.

In the Head Case, hereinbefore referred to, when the plea was filed alleging that the information did not contain an allegation showing the jurisdiction of the court, had the county attorney ashed and obtained leave of the court to amend it in that respect he should have been permitted to do so, but the court overruling the plea, it having been filed in due time, worhed a reversal in the case. In this case the plea not having been filed until after verdict and judgment, it comes too late and presents no error. In so far as it may seem to appear in the decision in the Head Case, by reversing and dismissing, that such a defect is not subject to amendment, it is not the law.

It is thus seen that, if the indictment is defective in matter of substance, it can be questioned at any stage of the proceedings, but, if the defect in the indictment is in matter of form only, the objection must be made before announcement for trial. The decisions of this court have been uniform in holding that, to charge this offense in an indictment, it is not necessary to allege the date of the election. Coy v. State, 59 Tex. Cr. R. 379, 128 S. W. 414; Enriquez v. State, 60 Tex. Cr. R. 580, 132. S. W. 782, and authorities cited in Branch’s Crim. Law, § 544. It is thus seen that the allegation is not essential in defining the offense and is not a matter of substance. Our Code fixes the jurisdiction of county and district courts as a matter of law. So the allegation does not confer jurisdiction on the court, and it is not a question of jurisdiction of the court over an offense. Even without a plea, if the evidence should show that the court trying the case under the law had no jurisdiction over it, objection could then be made. In this case it is not claimed that the county court did not have jurisdiction over the offense alleged and tried, but only that the indictment did not contain an allegation as required by article 466 of the Code of Criminal Procedure “that it shall appear therefrom to have been presented in the court having jurisdiction of the offense.” Without this allegation the indictment is defective, but under all our decisions it is but a defect in matter of form and not of substance. The allegations in an indictment cannot give jurisdiction to a court, if the evidence should develop that in law it had no jurisdiction. And as allegation cannot confer jurisdiction, neither can it deprive a court of jurisdiction. In the case of Walker v. State, 7 Tex. App. 52, this court, in passing on the clause, “It must appear therefrom that the same was presented in a court having jurisdiction of the offense,” says such allegation is not one of substance, and does not go to the foundation of the proceeding, and holds that such matter is but a matter of form, and can be amended in that respect. Being but a matter of form and not of substance, the objection must be made before announcement for trial, that it may be amended in such respect if it is so desired. It is not contended that an indictment lacking in that allegation is not defective, but it is not a matter of substance; it is not a question of the jurisdiction of the court, for that is fixed by statute, but it is merely a matter prescribed that should be and must be complied with when objected to at the proper time.

Appellant insists that the court erred in striking out the statement of facts and bills of exception, and insists that this court is in error in so holding in the case of Misso v. State, 135 S. W. 1173, and Mosher v. State, 136 S. W. 467, and refers us to section 7 of' the official stenographers’ act of 1909. His-attention, apparently, has not been called to-section 1 of that act which provides that, only in the event official shorthand reporters-are appointed, the terms of that act shall apply. See Acts of 31st Leg. [1st Ex. Sess.] page 374, being chapter 39. All the other-questions raised in the motion for new trial are discussed in the original opinion in this-case, and the motion is overruled.

DAVIDSON, P. J.

(dissenting). At a former day of this term the judgment herein was-affirmed. On rehearing the point was made that the indictment failed to allege the time-of holding the local option election, or rather the time the result of that election went, into-effect under which appellant was indicted,, and that, inasmuch as it is a jurisdictional question, it is a matter of substance and rendered the indictment fatally defective for not so alleging. My Brethren concede error, but hold it is a matter of form, and cite eases-which hold that the failure of the indictment or information to show on its face that it. was presented in and to the proper court, constitutes matter of form and not of substance. With that line of cases I am satisfied. That has been the settled rule in Texas- and has passed beyond the realm of discussion, but that is not the question here involved. The information in this case does recite the fact that it was presented in and to the county court of McLennan county. Part of the information is in full compliance with the statute; but the contention here is that the information does not show the date the local option law went into effect, and that this is a necessary jurisdictional allegation inasmuch as if the election was held under the old law it would be a misdemeanor, but, if held since the new statute of 1909 went into effect, it would be a felony, and that it is necessary to allege that date to show jurisdiction in the court in which' the prosecution was instituted. If a felony, it could not be brought in the county court; if a misdemean- or,'the district court would not have jurisdiction. The time of the commission of the offense is jurisdictional, and is a matter of substance and not of form. The court in the recent case of Head v. State reached that conclusion, and, in my judgment, in so far as it held it was necessary to allege the date the law went into effect so as to show whether the case is a misdemeanor or felony, is correct. This question, being jurisdictional, is a matter of substance, and it is therefore essential to state the date of the election, because it tabes this allegation to show whether the offense charged is a misdemean- or or felony. It may be either. If the election occurred before the felony statute went into effect, it is a misdemeanor. If the election occurred subsequently, it is a felony. On the face of the pleadings it is essential to the jurisdiction of the court to allege facts under these laws showing the court which had jurisdiction of the offense sought to be charged. The county court could not try the felony; the district court could not try the misdemeanor. Tested by the pleadings, it is essential to state sufficient facts to show the jurisdiction. This is illustrated by the law which constitutes misdemeanor and felony theft. Under those statutes where the value of the property is under $50, it is a misdemeanor; if $50 or over, it is a felony. It is essential under the general statute of theft to allege the value of the property in order to show jurisdiction of the court.

In this ease it was necessary to prove that the election occurred at a time essential to support proper pleadings. If felony, the election must have occurred on a date subsequent to the effectiveness of the late statute. Everything, by statute, necessary to be proved must be alleged.

Again, the new election supersedes the old election either by repealing it absolutely by vote of the people, or if successful, the new election takes the place of the old by substituting the felony statute for the misdemean- or statute. In either event, the old law would pass out and could not form the basis of a- prosecution for any new offense. The pleadings must state the law, or the facts at least, showing which law was in operation at the time of the offense as a predicate for the prosecution. It is therefore essentially a matter of substance. It is the very thing itself as indicated in the illustrations given aboye. The case of Walker v. State, 7 Tex. App. 52, supports this proposition as does the Simpson Case, 10 Tex. App. 681, and Pittman Case, 14 Tex. App. 578. These all sustain thus far the Head Case and the view I here suggest. The cases cited by my Brethren in the opinion in this case on rehearing do not reach or touch the question at issue. They only hold that the grand jury must present the pleadings in the correct court. It is not descriptive of the offense, nor does it reach any matter of substance of the offense. Time is always a matter of substance and not form. See White’s Ann. Code of Crim. Proc. p. 2.54, for authorities. See, also, vol. 10 Ency. of Plead, and Practice, p. 514, where it is said: “When time is of the essence of the offense or is an essential part of the description thereof, it should be accurately laid, or at least with such precision as may be necessary to describe the offense, thus, where an act is prohibited on certain particular days, it must be charged to have been done on such day or days.” The authorities are collated in support of the text in notes 1 and 2 on page 514, and note 1 on page 515.

The same rule is laid down in volume 12 of Ency. of Pleading and Practice, at pages 188, 189. This language is quoted: “When the court has no lawful power to act by reason of the fact that such power either is not conferred, or is expressly withheld with regard to the subject-matter of the suit, the parties thereto cannot be said to waive their objection to this want of power because it is not made at the proper time. Such objection cannot be waived and is fatal at any stage of the proceedings.” Por a great number of authorities, too numerous here to collate, see note 1, p. 189. These authorities are collated practically from every state in the federal Union. Again, in the same volume at page 120 this language is found: “Every power exercised by any court must be found in and derived from the law of the land, and be exercised in the mode and manner prescribed by that law. If the court cannot try the question except under particular conditions, or when approached in a particular way, the law withholds jurisdiction unless such condition exists, or the court is approached in a manner provided, and consent will not avail to change the provisions of the law in this regard.” For citation of many cases see notes 4 and 5 on page 120 of said volume.

If either of two laws may be enforced by reason of a contingency, or whether one or the other is in effect is dependent upon the occurrence of a certain event, this event or contingency must be alleged in order to justify the bringing of the suit or the filing of pleadings. In other words, where the existence of the law depends upon a contingency, that contingency must be alleged as having occurred in order to justify the litigation. Unquestionably, as I understand the law, it should be stated that the required event has taken place, for the simple reason'that the act does not and cannot become operative or the suit justified until the occurrence of that event. It takes this to vitalize the act or justify the bringing of the suit. It would follow, then, that in order to bring the accused within the denunciation of the law or within the particular court, or to give the particular court jurisdiction, it is necessary to allege the time in order to show such jurisdiction. ' Unless that event has occurred or that contingency has arisen, the prosecution cannot be maintained, and, if a- certain time is necessary to show whether it is a felony or misdemeanor, then it is a matter of substance and must be alleged in order to bring the suit in the proper court.

X have thought it proper to state these views in order that I may not be understood as agreeing with my Brethren in regard to what is necessary allegation charging a violation of the law as to whether it is a felony or misdemeanor. To my mind it is essentially a matter of substance, because upon that one fact will depend the jurisdiction of the court trying, or seeking to try, the case.

Not being able to agree with them in their opinion on rehearing, I file this as my dissent  