Appellant was convicted of a simple assualt, and his punishment assessed at a fine of $5; hence this appeal. This prosecution was on an indictment transfered from the District Court of Zavala County to the county court, the indictment being for an aggravated assault. Appellant made a motion to quash and dismiss the case in the county court because, as he alleged, the indictment was not regularly presented in the district court; that no order was entered during the term of said district court showing the presentation of said indictment therein. The evidence elicited on this subject shows that the district court adjourned on December 10th, and on some account *Page 522 the minutes showing the presentation of said indictment in the district court were not entered during the term, but after the adjournment of the term. Said order was entered on the margin of said minutes, to wit: "December 10, this day the grand jury came into open court, a quorum thereof being present, and presented to the court through their foreman, the following indictment, to wit:" Then follows the file number of the indictment, with the name of appellant and the offense. The court overruled the motion to dismiss. Appellant reserved an exception and assigns this action of the court as error. Article 433 Code or Criminal Procedure, requires indictments found by the grand jury to be presented in open court. Article 434 requires the fact of a presentation of indictment in open court by a grand jury to be entered upon the minutes of the proceedings of the court. It has been held that this requirement of the law must be complied with. See authorities cited in sec. 330, White's Ann. Code Crim. Proc. However, an objection to the failure to make this entry must be made in limine; that is, before or at the trial of the case. See authorities cited in sub. 4 sec. 330, White's Ann. Code Crim. Proc. The record may be amended as to such omission by order nunc pro tunc even at a subsequent term. Sec. 330, subdiv. 5, supra. In this case it appears that motion was made at the earliest opportunity; that is, after the case was transferred to the county court when it was called for trial. We hold that the motion to dismiss should have been granted, and the case returned to the district court, when, at the succeeding term, the minutes might have been amended. Hardy v. State, 1 Texas Crim. App., 556; Walker v. State, 7 Texas Crim. App., 52; Ewing v. Perry,35 Tex. 778; Ex parte Ellis, 37 Tex.Crim. Rep.. The cases cited show that the order of presentment must be made and entered of record in the minutes of the district court. Of course, this apprehends that said order must be entered during the term and not after the term. Article 1120, Revised Civil Statutes, requires that all the proceedings of the district court shall be read and corrected, and then signed in open court by the judge. This clearly cuts off an entry by the clerk or signing by the judge after the adjournment of the court; and as we understand no judge is authorized to have his minutes made up after the adjournment of the court, nor is he authorized to sign the minutes leaving a space to be filled in by the clerk after court has actually adjourned. To authorize such a proceeding would be exceedingly unsafe and would inevitably open the door to confusion and fraud, as to the orders of the court.
For the error of the court overruling the motion, the judgment is reversed and the cause remanded.
Reversed and remanded. *Page 523