Opinion
No. 25505.
November 14, 1951.
Appeal from the County Court, Colorado County, John A. Hancher, J.
H. J. Bernard, Houston, for appellant.
George P. Blackburn, State's Atty., of Austin, for the State.
The offense is negligent homicide in the second degree; the punishment, ninety days in jail and a fine of $500.
The State's Attorney has confessed error herein, calling our attention to the fact that the complaint was sworn to seventeen days prior to the alleged date of the offense shown therein. An information based upon a void complaint is itself void. Art. 414, Subd. 6, C.C.P.; 23 Tex.Juris., p. 601.
Attention is further directed to the fact that the information charges the operation of a Chevrolet delivery truck while the proof does not support this allegation.
Because of the fatal defect in the complaint, the judgment is reversed and the prosecution ordered dismissed.