Opinion
No. 15043.
Delivered March 30, 1932.
Intoxicating Liquor — Indictment — Date of Offense.
The indictment having alleged the offense to have been committed six days subsequent to the filing of the indictment is fatally defective, since one of the statutory requisites of an indictment is that "The time mentioned must be some date anterior to the presentment of the indictment," etc.
Appeal from the District Court of Gray County. Tried below before the Hon. W. R. Ewing, Judge.
Appeal from a conviction for the possession of intoxicating liquor; penalty, confinement in the penitentiary for two years.
Reversed, with directions.
Curtis Douglass, of Pampa, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Conviction is for possession of intoxicating liquor; punishment, two years in the penitentiary.
It was alleged in the indictment that the offense was committed on or about March 18, 1931, but the indictment was returned into court and filed on March 12, 1931, six days before the offense is averred to have been committed. Of course, there is an error somewhere in the dates, but it is fatal to the indictment.
The sixth requisite of an indictment under the provisions of article 396, C. C. P., is that "The time mentioned must be some date anterior to the presentment of the indictment, and not so remote that the prosecution of the offense is barred by limitation." Williams v. State, 103 Tex.Crim. Rep., 280 S.W. 220; Goddard v. State, 14 Texas App., 566; Robles v. State, 5 Texas App., 346; Lee v. State, 22 Texas App., 547, 3 S.W. 89.
The judgment is reversed and the prosecution ordered dismissed under the present indictment.
Dismissed.