
    STALCUP v. STATE.
    (No. 8522.)
    (Court of Criminal Appeals of Texas.
    March 4, 1925.)
    1. Indictment and information (&wkey;43 — Failure of clerk to place file mark on both complaint and information held not to vitiate them.
    Failure of .clerk to place file mark on both complaint and information held: not to vitiate them.
    2. Criminal law. <§=» 1115 (2) — Error in overruling challenge for cause held not reviewable, where record does not show juror served, or that accused exhausted all challenges.
    Error in overruling challenge for cause is not reviewable, where record does not show that juror served, or that accused had exhausted all his challenges.
    3. Criminal law <§=»l 129(9) — Recitals in objection made do not dispense with necessity for certification by judge as to facts upon which the objection is founded.
    Whether the introduction in evidence of an original document was unauthorized by Acts 37th Leg. (1921) c. 73 (Vernon’s Ann. Giv. St. Supp. 1922, arts. 5950%-5950]4<i), because of alleged failure to prove signature, held not reviewable by appellate court, where the trial judge did not certify as a fact that signature was not proved.
    4. Jury &wkey;>65 — Applicability of statute designating counties in which jury wheel shall operate stated.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5151, designating counties in which the jury wheel shall operate, applies in counties having one or several cities the aggregate population of which equals or exceeds 20,000 inhabitants.
    5. Jury <&wkey;82(2) — Failure to draw jury list within time limited in statute held not to require setting aside of panel in absence of injury.
    Failure to draw jury list within time limited in Rev. St. art. 5154, held not to require setting aside of panel in absence of injury shown.
    6. Indictment and information <&wkey;>4l(2) — Affidavit and jurat of certification of complaint held essential requisite to prosecution, in absence of indictment.
    Affidavit and jurat of certification of complaint held essential requisite to prosecution, in absence of indictment, in view of Code Or. Proc. 1911, arts. 34, 269, 479.
    7. Criminal law <&wkey;>2l I (2) — Jurat of certification of complaint held insufficient to support prosecution.
    Jurat of complaint and affidavit, showing that oath was administered by the assistant county attorney, in the name of county attorney, held insufficient to support the prosecution, in view of Code Or. Proc. 1911, arts. 34, 269, 479.
    Appeal from Eastland County Court at Law; J. H. Jones, Judge.
    A. C. Stalcup was convicted of permitting the display of a theatrical performance on Sunday for which an admission fee was charged, and he appeals.
    Reversed, and prosecution ordered dismissed.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense charged is that the appellant, being the proprietor of a public amusement, namely, a theater, permitted it to be open for the purpose of amusement on Sunday and permitted the display of a theatrical performance, namely, a motion picture exhibition, for which an admission fee was charged. The evidence seems to sustain these averments. A recital of it is deemed unnecessary.

The court heard evidence on the motion to quash the information and is not shown to have been in error in overruling it. The complaint and information were pinned together and delivered to the clerk at the same time, and the file mark indorsed upon but one. The papers having been delivered to the clerk for filing, they were not vitiated by his failure to place his fije mark upon them. Upon the evidence heard, the court was authorized to determine that the complaint and information ..were filed witli the clerk,’ and that it was his duty to place his file mark upon them. There was some evidence that they were handed to the clerk by E. A. Bills, who was not the county attorney, but was assisting in the case.

Whether the sentiment expressed by venireman Mills against the violation of the Sunday law went to the extent of his disqualification need not be determined for the reason that it is not made to appear that he served on the jury, nor that the challenges available to the appellant under the law were exhausted.

The complaint of the receipt in evidence of a document signed by A. C. Stalcup in compliance with chapter 73 of the General Laws of the 37th Legislature (Vernon’s Ann. Civ. St. Supp. 1922, arts. 5950%-5950:}4d) is that the introduction of the original without proof of its signature was unauthorized. The objection made'was that the signature was not proved. This is not certified to be a fact by the trial judge. .The recitals in the objection made do not dispense with the necessity that the judge certify to the facts upon which the objection is founded. Conger v. State, 63 Tex. Cr. R. 327, 140 S. W. 1112.

The motion to quash the array of the jury panel is upon the ground that there is not a city of 20,000 inhabitants or more in Eastland county as shown by the last census. It was shown that the largest town in the county contained something over 14,000 inhabitants. It is not shown that there were not other towns, the aggregate of. whose population, together with that of Banger, the largest town, would not have exceeded 20,-000. The population of the county, as shown by the last census, is over 58,000. The statute designating the counties in which the jury wheel shall operate uses this language:

“That between the 1st and 15th days of August of each year, in all counties in this state having .therein a city or cities containing a population aggregating twenty thousand (20,-000) or more people, as shown by the United States census of date next preceding such action,” etq. Article 5151, R. S. 1914.

From this we do not understand that to bring the jury wheel into operation the law requires that there shall be a city of more than 20,000 inhabitants where there are several cities, the aggregate population of which .equals or exceeds that number. The law contemplates that a list of jurors for the coming term should be drawn not less than 10 days before the term begins. See article 5154, R. S. The trial being otherwise regular, the failure to observe the directions of the statute with reference to the time, as appears to have been done in the present case, would not, in our judgment, in the absence of injury shown, require the setting aside of the panel. See King v. State, 90 Tex. Cr. R. 289, 234 S. W. 1107.

The complaint was sworn to by E. C. Bettis, and the jurat was signed, “W. J. Barnes, County Attorney of Eastland County, by Gilvie Hubbard, Assistant County’ Attorney.” The information was signed in the same manner. The affidavit and jurat made by an officer authorized by law to administer the oath certifying that this was done are a part of á complaint (articles 34, 269, 479, and C. C. P.), and in the absence of an indictment are an essential requisite to a prosecution. The assistant county attorney possesses the authority to take and certify the complaint, but it has been held in many cases that a certificate such as the present is not in compliance with the law in that it indicates that the oatl) was administered by the deputy in the name' of his principal, and, if valid, it should certify that it was made by the assistant, who in fact administered the oath. Following the example of other courts, this one, in the case of Arbetter v. State, 79 Tex. Cr. R. 487, 186 S. W. 769, held that the complaint certified with a jurat like the present was insufficient to support the prosecution. This practice has been followed in other cases, among them Goodman v. State, 85 Tex. Cr. R. 280, 212 S. W. 171; Anthony v. State, 90 Tex. Cr. R. 351, 235 S. W. 578. As indicated by some of the judges participating in the previous decisions, it would seem that a contrary view with reference to the sufficiency of the jurat might have been logically reached. See dissenting opinion in Arbetter’s Case, supra, and concurring opinion in Goodman’s Case, supra. Such is the view of the present personnel of this court but,' because it relates to a question of practice and construction of statutes which the Legislature has since left unchanged, this court feels constrained to follow it.

For want of legal complaint, the judgment is reversed, and the prosecution ordered dismissed. 
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