Cardenas v. State

Court of Criminal Appeals of Texas

Cardenas v. State

124 S.W. 953, 58 Tex. Crim. 109, 1910 Tex. Crim. App. LEXIS 52

CourtCourt of Criminal Appeals of Texas

DecidedJanuary 26, 1910

DocketNo. 342.

StatusPublished

Cited by6 cases

This text of 124 S.W. 953 (Cardenas v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cardenas v. State, 124 S.W. 953, 58 Tex. Crim. 109, 1910 Tex. Crim. App. LEXIS 52 (Tex. 1910).

Pincite

Opinion

McCORD, Judge.

This is an appeal from a conviction for unlawfully riding on a train, the punishment being assessed at a fine of $5.

The complaint charged that appellant did then and there unlawfully board a freight train on the track of the G., H. & S. A. By. Co. which was then and there, etc. The information charges that appellant did unlawfully board a freight train on the track of the Galveston, Harrisburg & San Antonio Bailway Company. Appellant filed a motion for new trial and also motion in arrest of judgment on the ground that there is a variance between the complaint and information in that the complaint fails to give any railway company, or the attempt of the State in the complaint to set out the name of the company by initial letters and there being no allegation in the complaint as to what these letters meant and nothing in the information to show that the initial letters meant the Galveston, Harrisburg & San Antonio Bailway Company, that the same would be such a variance as would not authorize a conviction in the ease. Our statute provides that prosecutions in the County Court may be had upon information filed by the county attorney, but that no information can be filed except where there is an affidavit or complaint filed upon which the information shall be based. If the information, therefore, has to be predicated upon a complaint or affidavit, if there should arise a variance between the complaint and affidavit or information, it would be fatal to the conviction, and there being no allegation either in the complaint or information that the G. H. & S. A. By. Co. meant the Galveston, Harrisburg & *110 San Antonio Railway Company, we hold that the initial letters used in the complaint, without explanation does not support an information charging that the train was on the track of the Galveston, Harrisburg & San Antonio Railway Company. The information must show the complaint as to all descriptive averments. For the error indicated the judgment will be reversed.

There is another point raised in the record that we deem necessary to notice. The complaint was made and sworn and subscribed to before G. C. Baker, Jr., County Judge ....:..... County, Texas. The objection is made that the complaint is not attested by any officer. The record in the ease shows that the case was tried before G. C. Baker, Jr., County Judge of Fort Bend County. It has been held that the court will take judicial notice of the names and signatures of its own officers, and where the officer and signature is followed by the word "cleric” it will be presumed on appeal that he was clerk of the court in which the case was tried. See Mountjoy v. State, 78 Ind., 172, and Simon v. Stetter, 25 Kans., 155.’ The record in this case showing that G. C. Baker, Jr, was the County Judge of Fort Bend County, this court would judicially determine that he was authorized to administer oaths, and it will be presumed in the absence of anything to the contrary that G. C. Baker, Jr., the County Judge of Fort Bend County, was the person who took the complaint of Scott in this case.

For the error above indicated the judgment is reversed and the cause is remanded.

Reversed and remanded.

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McCORD, Judge.

This is an appeal from a conviction for unlawfully riding on a train, the punishment being assessed at a fine of $5.

The complaint charged that appellant did then and there unlawfully board a freight train on the track of the G., H. & S. A. By. Co. which was then and there, etc. The information charges that appellant did unlawfully board a freight train on the track of the Galveston, Harrisburg & San Antonio Bailway Company. Appellant filed a motion for new trial and also motion in arrest of judgment on the ground that there is a variance between the complaint and information in that the complaint fails to give any railway company, or the attempt of the State in the complaint to set out the name of the company by initial letters and there being no allegation in the complaint as to what these letters meant and nothing in the information to show that the initial letters meant the Galveston, Harrisburg & San Antonio Bailway Company, that the same would be such a variance as would not authorize a conviction in the ease. Our statute provides that prosecutions in the County Court may be had upon information filed by the county attorney, but that no information can be filed except where there is an affidavit or complaint filed upon which the information shall be based. If the information, therefore, has to be predicated upon a complaint or affidavit, if there should arise a variance between the complaint and affidavit or information, it would be fatal to the conviction, and there being no allegation either in the complaint or information that the G. H. & S. A. By. Co. meant the Galveston, Harrisburg & *110 San Antonio Railway Company, we hold that the initial letters used in the complaint, without explanation does not support an information charging that the train was on the track of the Galveston, Harrisburg & San Antonio Railway Company. The information must show the complaint as to all descriptive averments. For the error indicated the judgment will be reversed.

There is another point raised in the record that we deem necessary to notice. The complaint was made and sworn and subscribed to before G. C. Baker, Jr., County Judge ....:..... County, Texas. The objection is made that the complaint is not attested by any officer. The record in the ease shows that the case was tried before G. C. Baker, Jr., County Judge of Fort Bend County. It has been held that the court will take judicial notice of the names and signatures of its own officers, and where the officer and signature is followed by the word "cleric” it will be presumed on appeal that he was clerk of the court in which the case was tried. See Mountjoy v. State, 78 Ind., 172, and Simon v. Stetter, 25 Kans., 155.’ The record in this case showing that G. C. Baker, Jr, was the County Judge of Fort Bend County, this court would judicially determine that he was authorized to administer oaths, and it will be presumed in the absence of anything to the contrary that G. C. Baker, Jr., the County Judge of Fort Bend County, was the person who took the complaint of Scott in this case.

For the error above indicated the judgment is reversed and the cause is remanded.

Reversed and remanded.

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Bluebook (online)

124 S.W. 953, 58 Tex. Crim. 109, 1910 Tex. Crim. App. LEXIS 52, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cardenas-v-state-texcrimapp-1910.

Opinion

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