Opinion
No. 3095.
Decided April 15, 1914.
1. — Carrying Pistol — Filing — Information.
In the absence of any evidence in the record that the information was never filed, and the matter not having been heard prior to the trial, but was raised for the first time in the motion for new trial, the same can not be considered on appeal.
2. — Same — Filing.
A paper is considered filed when placed with the clerk and by him with the papers of the case.
Appeal from the County Court of Hill. Tried below before the Hon. J.D. Stephenson.
Appeal from a conviction of unlawfully carrying a pistol; penalty, a fine of $100.
The opinion states the case.
No brief on file for appellant.
C.E. Lane, Assistant Attorney General, for the State.
This conviction was for carrying a pistol in violation of the law.
The record is before us without a statement of facts or bills of exception. Among other things, it is urged in the motion for new trial that the information was never filed by the clerk, and was, therefore, illegal and void and of non-effect. This was not urged prior to the trial but was raised for the first time in the motion for new trial. There is no evidence in the record in regard to the matter, and under the decisions it would come too late after the conviction. See Branch's Crim. Law, sec. 688 for collation of authorities. The evidence, if resorted to, might have shown that the information was filed at the same time and in connection with the complaint. Anyway, it is requisite to raise the question in limine, and comes too late after conviction. Of course, if the information was filed after announcement of ready for trial and the parties had gone before the jury, it would be too late to file it. If it had been placed with the papers, however, prior to calling of the case, and the court's attention called to it, it would then be filed of the same date at which it was placed with the clerk. But in the condition this record is it is too late.
The judgment is affirmed.
Affirmed.