Hedspeth v. State

160 S.W.2d 928, 143 Tex. Crim. 627, 1942 Tex. Crim. App. LEXIS 188

Opinion

DAVIDSON, Judge.

The unlawful sale of whiskey in a dry area is the offense; the punishment, a fine of $100.00.

That appellant sold whiskey in Walker County, a dry area, as charged in the information, is not disputed. The question for determination here is whether the complaint was sufficient to-support the information. In this connection, it appears that appellant moved to quash the information because of a variance between , the name of the purchaser of the whiskey as stated in the complaint and that as set forth in the information. The trial court overruled the motion to quash, and, over appellant’s objection, permitted the State to amend the complaint by changing the name of the alleged purchaser as it appeared therein to the name as stated in the information. In this the trial court was in error.

In Patillo v. State, 3 Tex. App. 442, we said:

“Clearly, the court had no right to amend, or permit any one else to amend, the affidavit. Affiant himself could not have done so without being sworn anew as to the amended statement. Whenever the court permitted the county attorney to amend the affidavit, it ceased to be the act of affiant; — — _ _ _ _ _ _ _ _ __ _ _ 99 See, also, Phariss v. State, 126 S. W. (2d) 981, 136 Tex. Cr. R. 604.

The name of the alleged purchaser of the whiskey was a matter of substance in the State’s pleadings.

The judgment is' reversed and' the prosecution ordered dismissed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.