Opinion
No. 24650.
February 8, 1950.
Complaint — Unsworn To — Void.
A complaint, unsworn to, or which does not show the authority of the person before whom the complaint was subscribed, is void.
Intoxicating Liquor.
Appeal from the county court of Lynn County; penalty, fine of $100.
Hon. Tom Garrard, Judge Presiding.
Reversed — Prosecution Ordered Dismissed.
No attorney for appellant of record on appeal.
George P. Blackburn, State's Attorney, Austin, for the state.
The appeal is from a conviction for possessing liquor for the purpose of sale in a dry area, with a fine of $100.
When the case was called for trial appellant timely filed a motion to quash the complaint and information on the alleged ground that same is too indefinite and uncertain and does not point out with sufficient certainty the county in which the offense is alleged to have been committed. The court properly overruled this motion.
After the trial and conviction, a motion in arrest of judgment was filed alleging that there is a variance between the complaint and information and that the complaint was not sworn to by anyone shown to have authority to do so.
The state's attorney has filed a brief admitting error in that the complaint says it was sworn to and subscribed before B. P. Maddox, but does not show the authority of this person to so act. He cites Robertson v. State, 25 Texas App. 529, 8 S.W. 659. This case seems to have been followed in a number of cases to the present time. See Articles 220, 221 and 222, Vernon's Ann. C. C. P., and annotations thereunder.
It clearly appears that the affidavit is no affidavit at all, under the holdings of this court, and, therefore, the complaint is void. The judgment of the trial court is reversed and the prosecution is ordered dismissed.
Hawkins, P. J., Absent.