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. Page: 90
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90 THE STATE V. CORBIT. [Tyler Term,
'Opinion of the court.
because it was not filed during the session of the court, he
must find his right to do so outside of the articles of the
court, indicating the grounds of defense which he may present
by way of motion to set aside the information, special
plea why he should not be tried upon it, or exception to it
for matter of form or substance. Is there anything to be
found elsewhere in the code from which we are to infer
that the information may be quashed upon any other
ground? If so, it is incumbent upon the defendant to
point it out. This he has not (lone. Nor can it be insisted
that it is anywhere so declared in the code in plain
and unmistakable terms. If the objection to the information
was well taken, it must be in the absence of any specific
indication of it in the code, on the ground that from the
very nature of the thing, and as a necessary legal requisite
which must be implied, a prosecution by information can
only be commenced by a presentation of the information
during a session of the court having jurisdiction of the
offense therein charged. But as it is not requisite to obtain
leave of the court to authorize the information, and as
no duty with reference to it is devolved upon the court
until after it has been presented, and even then an order
of the court is not required for the issuance of a capias,
(Code Criminal Procedure, art. 422,) it seems difficult to
conceive how it can be said that it can only be presented
during the session of the court.
A presentation by indictment must be made during the
session of the court, since there can be no grand jury at
any other time. Yet the code provides that the fact of its
presentment in open court by the grand jury shall be
entered upon the minutes of the court. The absence of
any similar provision in reference to informations seems
strongly persuasive, if not conclusive, that it was not intended
or supposed that they would in all instances be
filed during the session of the court. The leading object
in view, no doubt, in allowing prosecutions for misde
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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., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/98/?rotate=270: accessed August 22, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .