
    RODRIGUEZ v. STATE.
    (No. 9482.)
    (Court of Criminal Appeals of Texas.
    Nov. 11, 1925.)
    1. Indictment and information &wkey;>fl(2) — Failure of clerk to place file mark on indictment immaterial, where presentment definitely shown by recitals in indictment and minutes of court.
    Failure of clerk of district court to place file mark on indictment returned to district court and transferred to county court was immaterial, where presentment in district court was clearly shown by recitals in the indictment and minutes of that court.
    2. Indictment and information <&wkey;ll(2)— Where record shows identical indictment was returned to district court and by it transferred to county court, variance in dates immaterial.
    Where record showed that identical indictment, returned into district court, was by it transferred to the county court, variance in dates shown by minutes and file marks was immaterial.
    
      3. Criminal law <&wkey;l 115(2) — Mere statement of counsel that evidence in cases was same insufficient to show error in not standing aside jurors.
    Court’s refusal to stand aside six jurors who had tried and found guilty another party was not shown to be error, where ,there was no certified statement in bill of exceptions that evidence in the two eases was the same, but mere statement of counsel to that effect.
    Appeal from Willacy County Court; W. H. Mead, Judge.
    Crisogano Rodriguez was convicted of unlawfully carrying a pistol, and be appeals.
    Affirmed.
    Decker & Robinson, of' Raymondville, for appellant.
    Sam D. Stinson, State’s Atty., of Greenville, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   HAWKINS, J.

Conviction is for unlawfully carrying a pistol. Punishment was assessed at a fine of $100.

Appellant questions,the jurisdiction of the county court setting up in his plea: (a) That it appears from the indictment that it was never filed in the district court, but was presented and filed in the county court; (b) that the pretended transcript from the dtótrict court shows no such indictment was presented in said court, and, if it was so presenrea, the minutes fail to show that said indictment was given a file number as required by article 446, C. C. P.; (c) that the indictment is numbered 48, while the transcript of the district court minutes show it to be numbered 30

We think none of such averments can be sustained from the record. The transcript of the district court minutes shows that the grand jury returned into the district court an indictment against this defendant, naming him. The order of transfer shows that the indictment against this defendant, again naming him, was given the number 39 in said district court. After reaching the county court, it was there given the number 48, and the case proceeded through the trial under that number. The judgment of conviction is indorsed:

“Dis. 39, County 48, State of Texas, v. Crisogano Rodriguez. Judgment of the court.”

We think because the indorsement on the back of the indictment indicates that the clerk of the district court failed to place his file mark on it is immaterial. That would be only evidentiary of the fact that it was presented in said court, and this fact is definitely shown by the recitals in the indictment and the minutes of the district court. The variance- in dates as shown by the minutes and file marks we regard as not controlling. To our mind the record shows this identical indictment to have been returned into the district court, and by it transferred to the county court. No error is shown in the bill complaining of the refusal of the court to stand aside six named jurors who had tried and found guilty another party. The bill shows that counsel for appellant stated that the evidence in this case would be the same as in the other. Counsel’s statement may have been true, but it was only his ground of objection to the jurors, and would not supply a certified statement (which is absent from the bill) that the evidence in the two cases was the same. In no other way does the bill show this to have been the fact.

Finding the evidence sufficient to support the judgment, the same is ordered affirmed. 
      (g^For other cases see same topic and KE1 -NUMBER in all Key-Numbered Digests and Indoxes
     