# Urban v. State

> Court of Criminal Appeals of Texas · January 13, 1965 · 387 S.W.2d 396

URL: https://www.frixlaw.com/law-library/cases/9857374

## Case

- **Full name:** Harry Remer URBAN, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** January 13, 1965
- **Citations:** 387 S.W.2d 396
- **Precedential status:** Published
- **Opinion:** Dissent by Woodley
- **Judges:** McDonald, Morrison, Woodley
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Smith v. State, 1970 Tex. Crim. App. LEXIS 1366 (1970).
- Negative treatments: 1
- Distinguished by: 1
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9857374

## Opinion text

WOODLEY, Judge
(dissenting).
An indictment is “presented” when it has been duly acted upon by the grand jury and received by the court Art. 184 C.C.P.
“The fact of a presentment of indictment in open court, by a grand jury shall be •entered upon the minutes of the court, noting briefly the style of the criminal action and the file number of the indictment, but omitting the name of the defendant, unless he is in custody or under bond.” Art. 394 C.C.P.
This was done and the date it was done was perpetuated and shown by the minutes •of the court, Vol. 44, Page 462 as Recorded March S, 1962.
The cause was given its number and the clerk endorsed on the indictment his file mark: “Filed Mar 5 11:43 A.M. ’62.”
There is no merit in the contention that the evidence is insufficient to sustain the conviction because there was no proof before the jury that the indictment was presented or filed on March 5, 1962, or the contention that proof of the date the indictment was presented did not constitute proof of the date of the filing of' the indictment
In the early case of Kennedy v. State, 9 Tex.App. 399 , the Court of Appeals said:
“The records must show the fact of the presentment of the indictment, and that fact must be entered of record. * * * This was done, and the date upon which it was done was perpetuated and shown with certainty by the record. Under such circumstances, the record would be the surest and best evidence of the fact both of the date and the presentment, and in case of variance in the dates of the filing the record would control * * *. Suppose there had been no file-mark upon the indictment, would the failure or omission of the clerk invalidate the indictment? By no means; because the omission or failure of the clerk in this respect could be supplied, and would- be, by reference to the records, kept and authenticated by the court. These records, and they alone, import verity .with regard to judicial proceedings.”
The date of the presentment of an indictment, the filing of the indictment and the record entry of the presentment of the indictment, if correct, necessarily correspond.
“Presented” and “filed” in this connection refer to the same date.
“Presentment” and “filing”, in connection with indictments, have been used interchangeably by this Court in passing upon pleas of limitation. Duncan v. State, Tex.Cr.App., 59 S.W. 267 .
One instance of the use of “filed” where companion statutes use “presented” referring to the same day is Art. 183 of the Limitation Statute.
The use of the word “filing” in the indictment, rather than the word “presentment,” which is used in Sec. 2 of Art. 652a V.A.P.C., did not change the sense or affect the validity of the indictment.
Art. 410 Vernon’s Ann.C.C.P. provides:
“Words used in a statute to define an offense need not be strictly pursued in *400 the indictment; it-is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words.”
The indictment presented and filed on March 5, 1962, was introduced in evidence for the purpose of showing the date it was presented. The court, in his charge, instructed the jury that it was presented on March 5, 1962. The charge required the jury :to find, in order to convict, that appellant “did take or accept * * * as many as three separate bets and wagers of money on horse races within a period of one year next preced_the presentment of the indictment, which was presented on March 5, 1962, to-wit, the sum of five dollars on or about the said 19 day of December, A.D. 1961, the sum of five dollars on or about the 16 day of December, A.D. 1961, and the sum of five dollars on or about IS day of December, A.D. 1961, * *
No issue was raised as to the date the indictment was presented and filed and the trial court did not err in charging the jury as to such date.
,The. contention regarding the state of the record with reference to whether the indictment was before the jury as evidence is quite like'the contention we overruled in Petty v. State, 166 Tex.Cr.R. 569 , 317 S.W.2d 54 .
The state’s evidence was that appellant made the bets on December 19th, 16th and 15th, 1961, which were dates “within a period of one year next preceding the filing of the indictment.” There was no testimony regarding bets made more than one year prior to March 5, 1962.
I respectfully dissent to the reversal of the conviction.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9857374. Public record. Not legal advice.