Bell v. State

• Decision Date: 26 January 1921
• Docket Number: (No. 6066.)
• Parties: BELL et al. v. STATE.
• Court: Texas Court of Criminal Appeals

227 S.W. 317

BELL et al. v. STATE.

(No. 6066.)

Court of Criminal Appeals of Texas.

January 26, 1921.

Appeal from Harris County Court at Law No. 2; Roy F. Campbell, Judge.

Herman Bell and another were convicted of theft, and they appeal. Affirmed.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellants were convicted of theft. The complaint upon which the information is based does not begin, "In the name and by the authority of the state of Texas. The information does begin, "In the name and by the authority of the state of Texas." Motion in arrest of judgment was made because the complaint did not begin with the constitutional requirements: "In the name and by the authority of the state of Texas."

This question has been before the court in several cases. It has been held that, if the prosecution is upon an information, it is not essential that the complaint on which it is based should begin, "In the name and by the authority of the state of Texas." The information contains that necessary statement. It has been further held that, where the prosecution is based alone upon a complaint in a court where such offense may be prosecuted, it is invalid unless it begins by using the words, "In the name and by the authority of the state of Texas;" but if it does so begin in the information, then the omission of such expression from the complaint is not fatal. Saine v. State, 14 Tex. App. 144; Brown v. State, 46 Tex. Cr. R. 572, 81 S. W. 718; Ex parte Jackson, 50 Tex. Cr. R. 324, 95 S. W. 1047; Treadaway v. State, 61 Tex. Cr. R. 546, 135 S. W. 147; Jefferson v. State, 24 Tex. App. 535, 7 S. W. 244; Johnson v. State, 31 Tex. Cr. R. 465, 20 S. W. 980; Sessions v. State, 98 S. W. 243.

Under these authorities, the motion in arrest of judgment was correctly overruled. Had this case been prosecuted alone upon a complaint, and not upon a complaint and information, a different holding would result. This criminal proceeding is carried on in the name and by the authority of the state of Texas, as contained in the information, predicated upon the complaint. Therefore, under the authorities, it is sufficient, and the court was correct in overruling the motion in arrest of judgment.

The judgment will be affirmed.