Opinion
No. 26885.
March 10, 1954.
Appeal from the County Court, Lamar County, J. M. Hammack, J.
Joe H. Jones, Dallas, for appellant.
Leighton Cornett, County Atty., Paris, Wesley Dice, State's Atty., Austin, for the State.
The conviction is for possession of whiskey in a dry area for the purpose of sale, the punishment assessed by the jury being six months in jail and a fine of $750.
In view of our disposition of the appeal, a statement of the facts is deemed unnecessary.
The information, purporting to rest upon the written affidavit of C. O. Shelton, was filed on September 29, 1953.
The complaint or affidavit of C. O. Shelton which appears in the transcript was sworn to and filed on September 30, 1953. It therefore was not in existence when the information was presented on September 29, 1953.
Art. 415, C.C.P. provides, in part:
"No information shall be presented until affidavit has been made by some credible person charging the defendant with an offense. The affidavit shall be filed with the information."
The information must be preceded by, or accompanied by, a valid complaint. Branch's Ann.P.C. p. 247, Sec. 476.
The judgment is reversed and the cause is remanded.