This case was reversed recently. The State files a motion for rehearing. The reversal was based upon the proposition that the court overruled the motion to quash the indictment because of the failure to allege the date on which the local option law went into effect. He also filed a motion in arrest of judgment. The opinion was based upon that line of decisions which holds that the omission of such date is a formal matter, and in order to take advantage of this defect in the indictment it must be by motion to quash. Such has been the holding since Hamilton v. State, 65 Tex.Crim. Rep..
The State makes a showing that the motion to quash was not in fact made until after the trial. There is a statement to the effect, from appellant's counsel, that the motion was made before the trial with the understanding that it should be reduced to writing and filed later. This is controverted by the State, and sustained by the statement of the officers, including the judge who tried the case. If as a matter of fact a verbal motion had been made prior to the trial of the case with an agreement to reduce it to writing and filed later, it would be in ample time, and the fact that it was filed subsequently, and the judgment entered subsequently, would not affect the situation. But this being a controverted issue, and the judge and officers sustaining the opposite of his contention, appellant offering no evidence by affidavit, we will be governed by the record which shows the motion was filed a day following the conviction.
The State's motion will be granted, following that line of cases since the rendition of the Hamilton case, supra, and the reversal set aside, and the judgment affirmed.
Affirmed.