Adams v. State

Decision Date28 February 1917
Docket Number(No. 4372.)
Citation192 S.W. 1067
PartiesADAMS v. STATE.
CourtTexas Court of Criminal Appeals

Appeal from Panola County Court; R. W. Priest, Judge.

Tom Adams was convicted of unlawful gaming, and he appeals. Affirmed.

P. P. Long, of Carthage, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

Appellant was convicted of unlawfully gaming, and fined $10.00. The trial was before the court without a jury. There is no statement of facts, and but one bill of exceptions.

This bill shows that appellant made a motion to quash the complaint and information, because the complaint upon which the information was based is deficient in this: That it is not signed by affiant, and as there is no valid complaint there is no valid information. The bill further plainly shows that:

"The court refused to grant said motion, but granted the motion of the county attorney asking an order nunc pro tunc, after first having sworn affiant, who stated to the court under oath that he swore to the complaint on the date of same, and thought he had signed same, giving him the right to have affiant sign said complaint. That the court held that the county attorney, before announcing in said cause, could amend said complaint by having the affiant sign same, he having testified that he originally swore to it, and required the defendant to proceed in the trial of said cause. To which decision and order the defendant then and there excepted."

The complaint in the record shows that it was signed properly by "J. O. Smiley, Affiant." We take it from the bill of exceptions that the affiant's name was signed thereto upon the motion of the county attorney to meet appellant's motion to quash, and we treat the question as if the name had not been signed at the time appellant made said motion. The complaint, however, otherwise on its face shows this:

"In the name and by the authority of the state of Texas, I, J. O. Smiley, do solemnly swear," etc.

Otherwise the affidavit or complaint charging the offense is fully in accordance with the statute. In addition, following where the signature would doubtless have been and now is, is this:

"Sworn to and subscribed before me, by J. O. Smiley, a creditable person, on this the 6th day of November, A. D. 1916. [Signed] J. R. Duran, County Attorney, Panola County, Texas."

The information is this:

"In the name and by the authority of the state of Texas, now comes J. R. Duran, county attorney of Panola county, Texas, upon affidavit of J. O. Smiley hereto attached and made a part hereof," etc.

And then followed allegations fully in accordance with the law charging the offense, which is signed by the county attorney officially. Our statute (article 598, C. C. P.) provides that:

"Any matter of form in an indictment or information may be amended at any time before an announcement of ready for trial upon the merits by both parties, but not afterward. No matter of substance can be amended."

And (article 599, C. C. P.) all amendments of an indictment or information shall be made with the leave of the court and under its direction. Article 269, C. C. P., prescribes that the complaint shall be deemed sufficient, without regard to form, if it has these substantial requisites, and then states what they are; the last to the effect that it must be in writing and signed by the affiant, if he is able to write his name, otherwise he must place his mark at the foot of the complaint. These articles as to the amendment in matters of form of the indictment and information, and the requisites of a complaint, have been held all along by this court to apply to the amendment in form of a complaint. Thus, when the correct name of the defendant is not given in the complaint, its insertion in the information, though not in the complaint, was held proper practice. Wilson v. State, 6 Tex. App. 154. Likewise to correct a mistake in the name of the affiant, and conform it to the complaint, the jurat may be amended. Flournoy v. State, 51 Tex. Cr. R. 30, 100 S. W. 151; Cubine v. State, 68 Tex. Cr. R. 99, 151 S. W. 301; Neiman v. State, 29 Tex. App. 361, 16 S. W. 253.

In Montgomery v. State, 60 Tex. Cr. R. 304, 131 S. W. 1087, a motion was made to quash the information because the complaint on which it was based was not authenticated, in that it did not appear to have been sworn to before any officer authorized to administer oaths, and that after the filing thereof, and the information, it had been altered in a material respect, in that there had been added thereto the words, "W. R. Ewing, Dist. Atty. 31st Jud. Dist. of Texas," in an attempt to make the complaint valid. In that case the court heard proof on the motion to quash, and it appeared...

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4 cases
  • Meyers v. State, No. 05-03-01716-CR (TX 9/27/2005)
    • United States
    • Texas Supreme Court
    • September 27, 2005
  • Compere v. State
    • United States
    • Texas Court of Criminal Appeals
    • March 16, 1927
    ...this respect. Flournoy v. State, 51 Tex. Cr. R. 29, 100 S. W. 151; Cubine v. State, 68 Tex. Cr. R. 99, 151 S. W. 301; Adams v. State, 80 Tex. Cr. R. 632, 192 S. W. 1067; Nichols v. State, 84 Tex. Cr. R. 522, 208 S. W. In bill of exception No. 1, the appellant complains of the refusal of the......
  • Quinn v. State, 28503
    • United States
    • Texas Court of Criminal Appeals
    • November 7, 1956
    ...been filed to quash the complaint because it was not signed before being completed and sworn to, then under the case of Adams v. State, 80 Tex.Cr.R. 632, 192 S.W. 1067, the trial court could have permitted the affiant to place his signature If the claimed defect in the complaint was such as......
  • Bogus v. State
    • United States
    • Texas Court of Criminal Appeals
    • May 8, 1918
    ...this evidence, it was sufficient, we think, to justify the court's action. The court followed the statute and decision in Adams v. State, 192 S. W. 1067. The testimony shows that appellant lived several miles in the country from Marshall. The state's witness Montgomery swore that he, appell......

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