Johnson v. State

17 Tex. Ct. App. 230, 1884 Tex. Crim. App. LEXIS 207

• Court: Court of Appeals of Texas
• Decided: November 29, 1884
• Docket: No. 1845
• Status: Published

Opinion

Willson, Judge.

In affirming the judgment in this case on a previous day of this term, we committed an error in holding that the information is sufficient. Our attention has been called to this error in a motion for rehearing.

It is uncertain from the language of the information whether the charge against the defendant is made by the county attorney or by the complainant who made the oath in writing, upon which the information is based. The law requires that the prosecuting officer who presents the information shall make the charge, and it must clearly appear from the language of the information that he does so. This precise question has been several times determined by this court. (Profit v. The State, 12 Texas Ct. App., 234; Allen v. The State, 13 Texas Ct. App., 28; Thompson v. The State, 15 Texas Ct. App., 39.)

We take occasion here to remark that, in our opinion, it is wholly unnecessary to state in the information that it is founded upon complaint in writing under oath, or to make any mention whatever of the oath. This is not one of the requisites of an information. (Code Crim. Proc., art. 430.) If the oath is filed with the informatian, it is all that the law requires in this respect. (Code Crim. Proc., art. 431.)

The motion for rehearing is granted, and, because the information is fatally defective, the judgment is reversed and the prosecution is dismissed.

Sever sed and dismissed.

[Opinion delivered November 29, 1884.]