Womack v. the State

Full title: WILL WOMACK v. THE STATE

Court: Court of Criminal Appeals of Texas

Date published: Jun 1, 1892

31 Tex. Crim. 41 (Tex. Crim. App. 1892)

19 S.W. 605

Opinion

No. 7847.

Decided June 1, 1892.

Complaint — Date of Offense — Arrest of Judgment. — Where the affidavit or complaint was made on the 9th of January, 1891, and the offense was stated in the body of the complaint to have been committed on the 8th day of February, 1891, a month subsequent to the making of the complaint, held, that the date of the commission of the offense sought to be charged must be anterior to the making of the complaint, and motion in arrest of judgment should have been sustained.

APPEAL from the County Court of Lamar. Tried below before Hon. JOHN.W. ROUNDTREE, County Judge.

The complaint and information sought to charge appellant with unlawfully carrying a pistol, on the 8th day of February, 1891. At the trial he was convicted, and his punishment affixed at a fine of $25. He moved in arrest of judgment, because the complaint alleged the commission of an offense subsequent instead of anterior to its filing, which motion was overruled by the court.

No briefs for either party.

DAVIDSON, JUDGE.

Appellant was prosecuted and convicted of carrying a pistol on and about his person. The complaint which forms the basis of the information in this case charges the offense to have been committed on the 8th day of February, 1891, whereas the affidavit was made on the 9th day of January, 1891, one month prior to the alleged date of the commission of said offense. This defect was called to the court's attention by a motion in arrest of judgment, which was overruled. Looking to the jurat of the officer and the date of taking the affidavit, we find the offense sought to be charged was committed long subsequent to the making of the complaint. As was said by this court in Lanham's case, "there is an irreconcilable incompatibility between them, and the motion in arrest of judgment should have been sustained." Lanham v. The State, 9 Texas Ct. App. 232[ 9 Tex. Crim. 232]. The date of the commission of the offense sought to be charged must be anterior to the making of the complaint. The judgment is reversed and the cause remanded.

Reversed and remanded.

Judges all present and concurring.