Wilkins v. State

5 S.W.2d 770

• Court: Court of Criminal Appeals of Texas
• Decided: April 25, 1928
• Docket: No. 11754
• Status: Published

Opinion

MORROW, P. J.

The offense is unlawfully carrying a pistol; punishment fixed at a fine of $159.

The trial was had upon an indictment purported to have beeh returned in the district court of Somervell county. Preliminary to the trial, appellant filed a sworn plea challenging the jurisdiction upon the ground that there was no order of the district court transferring the case to the county court. The plea was overruled, and exception taken. Under the statute (article 419, C. C. P. 1925), where an indictment is returned in the district court for an offense which is not within the jurisdiction of that court, but is within the jurisdiction of the county court, an order shall be made by the judge of the district court transferring the case to the county court. Compliance with the statute has been uniformly required. When a misdemeanor case is prosecuted upon an indictment, the order mentioned is essential to the jurisdiction of the county court. See Harris v. State, 57 Tex. Cr. R. 84, 121 S. W. 1116; Richardson v. State, 57 Tex. Cr. R. 285, 122 S. W. 560; Harper v. State, 84 Tex. Cr. R. 345, 207 S. W. 96; Henson v. State (Tex. Cr. App.) 280 S. W. 585. The plea to the jurisdiction should have been sustained. If there was a transfer, proper proof of it should be made. If there was none, the prosecution should be dismissed.

The judgment'is reversed, and the 'cause remanded, with the suggestion that the procedure mentioned above be followed.