dissenting.
The indictment in this cause fails to state facts from which it may be determined that the offense alleged occurred within the applicable period of limitations. That such is a defect of “substance” rather than form was demonstrated in Ex parte McFarland, 632 S.W.2d 621, at 623 (Tex.Cr.App.1982). The majority reasons that under amended Article 1.14(b), V.A.C.C.P., an indictment suffering even a defect of “substance” must be objected to prior to trial to preserve complaint on appeal or collateral attack. See Studer v. State, 799 S.W.2d 263 (Tex.Cr.App., delivered this day). In my view, however, the indictment fails to “charg[e] ... an offense” within the meaning of either Article I, § 10 or Article V, § 12(b) of the Texas Constitution.
Long ago the Court of Appeals determined that the allegation of time of offense in an indictment is a matter of “substance” rather than “form.” Drummond v. The State, 4 Tex.App. 150 (1878). By “substance” in this context the Court meant that such an allegation was not subject to amendment in the trial court, and that a defect could only be cured by return to the grand jury. See also Sharp v. The State, 6 Tex.App. 650, at 654 (1879). “[Ejssential to the fundamental sufficiency” of an indictment is that it allege a date that adequately serves to indicate on its face that the alleged “act or omission” * was committed anterior to its presentment, and was not barred by limitations. Brasfield v. State, 600 S.W.2d 288, at 306 (Tex.Cr.App.1980) (Clinton, J., dissenting on State’s motion for rehearing); Article 27.08(2), V.A.C.C.P.; Ex parte McFarland, supra. We have said that an indictment that does not is “void” and “may be challenged at any time.” American Plant Food Corporation v. State, 508 S.W.2d 598, at 603, & n. 1 (Tex.Cr.App.1974). This is as much as to say a purported indictment suffering such a defect does not charge an offense and is not really an “indictment” at all in contemplation of Article I, § 10, supra. Such was the state of the law “on the morning of the day [Article V,] § 12(b) was approved.” Studer v. State, supra, at 289 (Clinton, J., concurring).
Therefore I would hold the purported indictment in this cause failed adequately to “charg[e] ... an offense” under Article V, § 12(b), supra, and hence was not an indictment at all. Because it relates to defects of form or substance in an “indictment,” Article 1.14(b), supra, does not apply here.
I respectfully dissent.
Article I, § 10, supra, and its predecessors all:
“embraced an understanding of those distinct requisites of an indictment under the common law captured and succinctly defined by Old Code article 394 [currently Article 21.01, V.A.C.C.P.], viz:
‘An indictment is the written statement of a Grand Jury accusing a person, therein named, of some act or omission, which, by law, is declared to be an offense.”’
Studer v. State, supra, at 288 (Clinton, J., concurring).