88 THE STATE v. CORBIT. [TVy],ier Terim,
Opinion of the court.
THE STATE V. JAMES CORBIT.
INFORMATION may be presented in the District Court during vacation;
and it is not a valid objection to an information, otherwise regular,
that it was not presented to the court while in session.
APPEAL from Wood. Tried below before the Hon. Z.
George W. Smith, for the State.
MOORE, ASSOCIATE JUSTICE.--An information is a written
statement filed and presented on behalf of the State by the
District Attorney accusing the defendant of an offense
which is by law subject to be prosecuted in that way.
(Code Criminal Procedure, art. 402.) And all misdemeanors
may be presented by either information or indictment.
(Code Criminal Procedure, art. 391.) It is
not questioned that the offense charged in the information
belongs to the class which may be prosecuted by
information; but it is insisted that the information was
properly quashed, because the affidavit upon which it was
made and the information were both made and filed witl
the clerk in vacation and not in open court. If we admit
that an information cannot be presented within the meaning
of the code unless the court is in session, still it would
be much too technical an application of the rule to say it
should be quashed, if otherwise sufficient, merely because
it had been filed with the clerk previous to the meeting of
the court. It surely should be treated as presented when
brought to the attention of the court, if then recognized by
the District Attorney as an information on which he desired
to prosecute the defendant for the offense therein
charged against him. If any action had been taken upon
the supposition of its previous presentation, this might be
set aside and held for naught; but the fact that a capias
may have issued upon it, and other steps taken in prosecu
Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42.. St. Louis, Mo.. The Portal to Texas History. http://texashistory.unt.edu/ark:/67531/metapth28531/. Accessed April 17, 2014.