Thomas v. State

12 Tex. Ct. App. 227

Opinion

Willson, J.

This prosecution is by information, based upon affidavit charging the defendant with an aggravated assault and battery. The information, after the commencement, reads as follows: “W. J. Purdom, county attorney in and for the county of Robertson and State of Texas, duly elected and qualified, now here, in the affidavit of M. A. Morehead, which is herewith filed and shows to the court that A. B. Thomas,” etc.

There is no direct allegation in the information that the defendant committed the offense. The allegation is that the affidavit shows he committed the offense. We do not think this sufficient. The offense should be alleged by averments direct, positive and certain, and not by way of argument and inference'. (Moore v. State, 7 Texas Ct. App. 608.) In Hunt v. State, 9 Texas Ct. App. 404, this court held that an information which alleged that the affidavit “shows to the court,” etc., was insufficient. We think that case is decisive of this one, and the judgment of the court below is reversed, and the information dismissed.

Reversed and dismissed.