Carpenter v. State, 24301.

• Decision Date: 09 March 1949
• Docket Number: No. 24301.,24301.
• Citation: 218 S.W.2d 207
• Parties: CARPENTER v. STATE.
• Court: Texas Court of Criminal Appeals

218 S.W.2d 207

CARPENTER v. STATE.

No. 24301.

Court of Criminal Appeals of Texas.

March 9, 1949.

Appeal from Hockley County Court; Z. O. Lincoln, Judge.

H. B. Carpenter was convicted of illegally transporting beer in a dry area, and he appeals.

Reversed and prosecution ordered dismissed.

Smith & Boling and S. P. Boling, all of Lubbock, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

HAWKINS, Presiding Judge.

Conviction is for the transportation of beer in a dry area.

Our State's Attorney has expressed the view of the court so pertinently that we adopt his brief as the opinion of the court:

"No. 24,301

"In the Court of Criminal Appeals of the State of Texas

                "H. B. Carpenter,             Appellant
                    v
                The State of Texas,            Appellee
                

"Brief for the State

Appellant was charged by information in the County Court of Hockley County, Texas, with the offense of transporting beer in excess of one-half of one percent by volume and not more than four percent by weight in a dry area. He waived a jury, entered a plea of not guilty before the court, was by the court found guilty, and his punishment assessed at a fine of one hundred dollars.

"After conviction appellant timely filed his motion in arrest of judgment, contending that the complaint and information were insufficient for the reason that the complaint does not show the official character of the officer before whom it was verified. The complaint shows to have been signed by George Howard, Affiant, sworn to and subscribed by the said George Howard on the 25th day of May, A. D., 1948, before La Vern I. McCann, Hockley County Texas, there being absolutely no showing as to what character of officer, if any, La Vern I. McCann was, insofar as the complaint is concerned.

"This Court has consistently held that a complaint, to be valid, must be authenticated by the jurat of the officer before whom it was made, and also that, in the absence of a valid complaint, there can be no valid information. In Robertson v. State , 8 S.W. 659, it was held:

"`A complaint without a jurat will not support an information. * * * A jurat is the certificate of the officer before whom the complaint is made, stating that the same was sworn to and subscribed by the affiant before him, and it must be signed officially by such officer.'"

"See Neiman v. State , 16 S.W. 253; Montgomery v. State , 131 S.W. 1087; Midkiff v. State [Tex.Cr.App.], 209 S.W.2d 354. See, also, Articles 28, 221, 222 and 415, Vernon's Annotated Code of Criminal Procedure, and many authorities cited thereunder.

"Appellant contended in his motion in arrest of judgment that the judgment of conviction is void for the reason that the County Court of Hockley County, Texas, was not in session on the 23rd day of September, 1948, being the date upon which he was convicted; that Article 5, Section 29, of the Constitution of Texas [Vernon's Ann.St.], provides that the terms of court in Hockley County, Texas, shall be on the first Mondays in February, May, August and November of each year, and may remain in session three weeks.

"The Constitution of Texas, Article 5, Section 29, does state...