Flournoy v. State

• Decision Date: 13 February 1907
• Citation: 100 S.W. 151
• Parties: FLOURNOY v. STATE.
• Court: Texas Court of Criminal Appeals

100 S.W. 151

FLOURNOY v. STATE.

Court of Criminal Appeals of Texas.

February 13, 1907.

Appeal from Eastland County Court; Chas. D. Spann, Judge.

J. W. Flournoy was convicted of aggravated assault and battery, and appeals. Affirmed.

D. G. Hunt, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of aggravated assault and battery, and his punishment assessed at a fine of $25, and prosecutes this appeal.

Appellant, by bill of exceptions, questions the action of the court in permitting the jurat to the complaint filed in this case to be corrected. It appears that after the parties had gone to trial, and evidence for the state and defendant had been introduced, with the exception of one witness for the defendant, the county attorney discovered a mistake in the jurat of the officer who took the complaint against appellant, and he made a motion to correct same. It appears that the complaint showed in the body of it the name of Earl Conner, and that Earl Conner also signed the complaint, but that in making out his jurat to same the officer stated that same had been sworn to and subscribed by M. R. Bostic. The motion alleged that in truth and in fact Earl Conner made and signed the complaint, and swore to same, and that by mistake the officer, in placing his jurat thereto, used the name of M. R. Bostic, instead of Earl Conner. The state desired to offer proof to that effect, and to have the jurat of the officer corrected. This was done by the court, and the correction made accordingly. Appellant excepted to the action of the court for the following reasons: "Because the jurat to the complaint, being a matter of substance, could not be amended, changed, or corrected after the announcement of ready for trial. The jurat to the complaint on which the information was based in this case affirmatively showed that said complaint was made by M. R. Bostic, when the body of said complaint was made by Earl Conner. On this state of facts, the jurat would control, and hence there was no complaint to be amended; but the action of the court was equivalent to beginning the trial on a complaint made by one person, and to then suspend the trial and bring in another person, and let him swear to the complaint, and the complaint, being the basis for the information, could not be altered, changed, or corrected, when such change, correction, or alteration, as in this case, seeks to contradict the jurat of the officer before whom said complaint was made, for the reason that the jurat purports verity and controls the body of the complaint, where same is at variance with the jurat. (2) And because Earl Conner was acting in the capacity of county attorney for Eastland county, Texas, when he made, signed, and swore to said complaint, and the law does not authorize the county attorney to base an information in the county c...