This case is on motion for rehearing. Appellant insists the court misconceived the force and effect of the application for continuance in that it was treated as if the application failed to show whether it was the first or second application. Concede it was the first application: the motion does not undertake to meet the real conclusion of the court, in regard to the matter, first, there was absolutely no diligence, and, second, that the facts were stated too generally to be considered. We might add another reason why; that is, appellant might have been at home on the night of the 12th of March, the night the offense was committed, and yet have been at the place at the time of the commission of the offense. The facts expected to be proved, he says, are as follows: "That this defendant was at home in company with this witness on the night and morning of the 12th of March, 1907, the time alleged in the information herein, that the offense was committed." The facts show that the offense was committed on the train at the depot in the town of Colorado, and appellant lived in the town. He could have been at home on the night, and even *Page 161 on the morning when the offense was committed, and yet been at the depot during that morning. The allegation does not cover all the time or seek to cover it. There is nothing, we think, in this contention.
There is another ground suggested for the first time in the motion for rehearing, for a reversal, and it is based upon the fact that the county judge took the affidavit or complaint of the witness charging appellant with theft of a hat. One of the grounds seems to be predicated upon the theory that the county judge cannot take the complaint charging another with an offense, and the further proposition seems to be relied on that the county judge by that means would be disqualified, as being counsel in the case, and in support of the latter statement he cites us to Terry v. State, 24 S.W. Rep. 510, and Abrams v. State,31 Tex. Crim. 449. Of course, if the county judge had been of counsel for the State or the defendant, he could not sit as a judge in the trial of the case, but how a county judge in taking the affidavit of a party to a complaint would be constituted an attorney in the case, we do not understand. The Abrams' case and Terry case, supra, are correct. It would hardly be debatable, we think, that an attorney who had been of counsel in a case, could subsequently become a judge on the trial in the same case. Our law expressly provides that he shall not be, but a judicial officer taking the affidavit of a party making a complaint does not constitute him a counsel. Now, as to the capacity or legal right or authority of a county judge to take an affidavit, we simply refer to the statutes, civil and criminal, which authorize the judges and justice of the peace to take affidavits and administer oaths, and further that all magistrates are authorized to administer oaths, and without going into a collation of these authorities we cite as sufficient: Article 467: "An information shall not be presented by the district or county attorney until oath has been made by some credible person, charging the defendant with an offense. The oath shall be reduced to writing and filed with the information. It may be sworn to before the district or county attorney who, for that purpose, shall have power to administer the oath, or it may be made before any officer authorized to administer oaths." Turning to article 4, of the Revised Civil Statutes, we find it reads as follows: "All oaths, affidavits or affirmations necessary or required by law may be administered, and a certificate of the fact given, by any judge or clerk of a court of record, justice of the peace, or by any notary public, within this State."
Finding no merit in the motion for rehearing, it is overruled.
Overruled.
Brooks, Judge, absent. *Page 162