Appellant was arrested for a misdemeanor, and tried in the Justice Court of precinct No. 1 of Lee County, and appealed thence to the County Court, which appeal seems to have been dismissed.
It is agreed that the affidavit, and the affidavit so shows, charging appellant with the offense, was sworn to before the county attorney. He administered the oath. The county attorney then filed it in Justice Court of precinct No. 1, where the case was tried, resulting in appellant's conviction, and a fine of fifty dollars.
The contention of appellant is that he could not be tried in the Justice Court because the county attorney failed to file an information with the justice of the peace as required by the statute. It seems also that no advantage was sought to be taken of this in the Justice Court, but the question was raised on appeal in the County Court. The State's contention seems to be that because the question was not raised in the Justice Court, therefore appellant waived filing of the information in the Justice Court. There is no merit in such contention and it is unnecessary to discuss it. Where the law requires an information to be filed in the criminal case, it must be filed. The accused can not waive it. If the Justice Court jurisdiction did not attach to the case and the proceeding was void for want of the information, the appeal to the County Court could not confer jurisdiction upon that court on appeal. The statute requires that in all cases filed originally in the County Court a complaint and information shall be filed. The information is a necessary prerequisite to the jurisdiction of the County Court to try the case. This is settled by all the authorities and by the statute, and the Constitution authorizes this. Article 5, section 17. This case was within the jurisdiction of the Justice Court to try and dispose of on its merits, and it would become final unless the convicted party saw proper to appeal to the County Court. The Legislature being invested with all the authority necessary to prescribe the practice and method of procedure in Justice Court, rules of procedure or practice the Legislature saw proper to provide in reference to these matters would be valid and mandatory. Wherever authority as to rules of procedure and matters of practice are discretionary in the Legislature, their action with reference to the matter is final and binding on courts. That body provided in section 35 of the Code of Criminal Procedure that "if the offense be a misdemeanor, the attorney shall forthwith prepare an information and file same together with a complaint in the court having jurisdiction of the offense. If the offense charged be a felony, he shall forthwith file the complaint with the magistrate of the county and cause the necessary process to be issued for the arrest of the accused." The attorney here *Page 136 spoken of was mentioned in the preceding article as being either the district or county attorney. Where the "justice of the peaceor other, officer" takes the affidavit or complaint and files it with the Justice Court it is not necessary for the county attorney to file an information. That article is not in conflict with article 35, but if it is article 35 will control because special in its application to cases specified in the Act. The information must be filed by the mentioned officer. The county and district attorney are the only officers who are empowered and required to file informations. Article 25 specially applies with reference to complaints taken before the county or district attorney and filed in misdemeanor cases, and it requires that in all such cases such attorney "shall forthwith prepare an information and file same, together with the complaint," etc., and under all such circumstances the information shall be filed with the proper court "forthwith" by the county or district attorney. The Legislature had the right to provide this procedure and make it apply only to the county and district attorney. It had the further right to require the filing of this information, and as the Legislature has so provided this court nor any other authority would have the right to say this procedure was or is illegal and shall not be followed. There is nothing directory to this; it just says "he shall" do so, and the facts show he did not, and under the terms of this statute until the information has been filed, where the county or district attorney takes the affidavit, the court does not acquire jurisdiction to try the case. Filing the information with the complaint is a prerequisite. The same rule obtains in all cases filed originally in the County Court, but in Justice Court it only obtains when the county or district attorney takes the affidavit. The trial in the County Court is void for want of the information. This statute is equally as imperative as that applying to the County Court. The language is as emphatic in article 35 as it is in those articles which apply to trials of misdemeanors in the County Court where complaint has been made and first filed in that court. This court has adhered to those provisions of the statute at all times and under all circumstances. The Constitution authorizes it, and the statute requires it. Article 5, section 17. The Legislature, as before stated, had a right to so order and this court has not the authority to say their action was illegal. As illustrative of this, the Legislature has provided a form of recognizance on appeal from County Court to this court. This court has always upheld that statute and form rigidly, dismissing a great number of cases because the statutory form was not followed, holding that the jurisdiction of this court did not attach for want of these. In compliance with article 35, the conviction in the Justice Court was illegal for want of information, and the Justice Court could not acquire jurisdiction without it, therefore the conviction was a nullity.
Judge Harper cites the Constitution of 1869 to support his views. That Constitution was abrogated by the Constitution of 1876, and is not in force. We must look to the latter Constitution and its provisions and legislation thereunder.
I dissent. *Page 137