Thomas v. State

296 S.W. 310, 107 Tex. Crim. 405, 1927 Tex. Crim. App. LEXIS 447

Opinion

MORROW, Presiding Judge. —

The offense is aggravated assault, punishment fixed at confinement in the county jail for a period of six months.

In a motion in arrest of judgment the prosecution was attacked upon the ground that the complaint was not verified by affidavit. The complaint is in regular form, with the signature of J. L. Boyd, and the jurat by John E. Taylor, County Attorney of Harrison County. Upon the hearing Boyd testified that he was the person who made the complaint and that he signed it, but was not sworn by the officer who took the complaint, or any other officer, and that he had never made affidavit before anyone as to the contents of the complaint. This was not controverted in any particular; By statute, the complaint is made imperative as a basis for the prosecution by information. See Art. 415, C. C. P. 1925, Vernon’s Ann. Tex. C. C. P., Vol. 1, p. 313; Stacy v. State, 96 Tex. Crim. Rep. 499; Day v. State, 286 S. W. 1107; see also Art. 763, C. C. P., 1925, touching the office of the motion in arrest of judgment. In the absence of a written complaint duly verified, the prosecution cannot be maintained.

The judgment is reversed and the prosecution ordered dismissed.

Reversed and dismissed.