Opinion
No. 30986.
October 28, 1959. On Motion for Rehearing November 25, 1959.
Appeal from the County Court, Coke County, W. W. Thetford, J.
Clyde Vinson, San Angelo, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
This is a conviction for driving while intoxicated upon a public highway, with punishment assessed at three days in jail and a fine of $50.
The complaint upon which the information in this case was presented states that the affiant has 'good reason to believe and charge' that the appellant committed the offense charged.
It will be noted that nowhere therein does the affiant swear that he 'does believe' that appellant committed the offense.
A complaint sworn to only on belief is bad and will not support an information. Art. 222, subd. 2, Vernon's Ann.C.C.P.; Betels v. State, 145 Tex.Crim. R., 168 S.W.2d 499; Ex parte Luehr, 159 Tex.Crim. R., 266 S.W.2d 375; Branch's P.C., 2d Ed., Vol. 1, Sec. 498, p. 485.
The complaint being fatally defective, the prosecution must be dismissed.
The conviction is reversed and the prosecution ordered dismissed.
On State's Motion for Rehearing
By supplemental transcript it has now been made to appear that the complaint actually filed in the case contained the missing allegations which were discussed in our original opinion.
No statement of facts accompained the record. We shall discuss the contentions advanced in appellant's brief. He first complains that the complaint is not shown to have been filed prior to the making of the Information, since they both bear the same date. In Byers v. State, 158 Tex.Crim. 638, 259 S.W.2d 193, we held that in the absence of a showing to the contrary it wil be presumed, where both instruments were filed the same day, that the complaint was filed before the Information. Byers is here controlling.
In the absence of a statement of facts appellant's exceptions to the court's charge cannot be considered. Conwell v. State, Tex.Cr.App., 258 S.W.2d 86.
Appellant's formal bill of exceptions complains of certain argument concerning the State's failure to offer into evidence a certain bottle of beer. Since we have no statement of facts before us and since the bill fails to recite, we do not know that the bottle was in fact admissible or that the statement made by the prosecutor was an incorrect statement of the law. We find no error frflected by the bill.
The judgment of reversal is set aside, the State's Motion for Rehearing is granted, and the judgment is now affirmed. Pippin passed near it, and identified appellant as the driver. The Kellam automobile proceeded on toward Canton and Pippin turned off on another road, went to a nearby house and called the police, after which he returned to the Kellam home.
A short while later that night officers apprehended the Pontiac approximately 20 miles south of Canton. Appellant was the driver, and Barnes and Tunnell were his passengers. In the automobile and on the persons of Barnes and Tunnell were found the fruits of the robbery and the pistols and masks which had been used. Nothing was found on appellant's person. Several hundred dollars in money and a check payable to Kellam were found 'stuck down in between the seat and the back' 'right at the right of where you would sit' at the steering wheel.
Kellam's automobile was found at a roadside park five miles east of Canton in the direction of Kellam's house.
Appellant did not testify in his own behalf but called a number of witnesses who testified that he had not been convicted of a felony and bore a good reputation as a peaceable and law-abiding citizen.
Over proper objection the trial court refused to charge the jury on the law of circumstantial evidence. Reliance is had upon Burleson v. State, 132 Tex.Crim. R., 101 S.W.2d 1020, wherein we find a fact situation very similar to the one before us here. In that case accused entered into an agreement with the injured party whereby he and one Jordan were to consummate an unlawful currency transaction with him, and accused inquired if the injured party was possessed of the funds to complete the same. After being assured that he was, the accused left and soon thereafter Jordan came to the injured party's room and robbed him and was, upon his departure, seen leaving in an automobile with the accused. Judge Hawkins, in speaking for the Court, said that the evidence was devoid of any proof that the accused knew that a robbery was contemplated except from the surrounding circumstances and reversed the conviction for the failure to charge on the law of circumstantial evidence. In the case at bar the main fact to be proved was that appellant participated in the commission of the robbery.
In the cases relied upon by the State, such as Rowan v. State, 97 Tex.Crim. R., 260 S.W. 591, Moody v. State, 106 Tex.Crim. 55, 290 S.W. 161, White v. State, 154 Tex.Crim. R., 228 S.W.2d 165, and Hill v. State, 135 Tex.Crim. R., 121 S.W.2d 996, there was evidence from an accomplice witness or a confession of the accused to this main fact and they are therefore not controlling here. The proof of such main fact in the case at bar rests entirely upon circumstantial evidence and the court erred in failing to give the charge requested.
For the error pointed out, the judgment is reversed and the cause remanded.