The offense is malicious prosecution; the punishment, a fine of $100.
The complaint recites that affiant has good reason to believe, etc., but omits the phrase "and does believe." The inclusion of this last named allegation is statutory. Article 222, subd. 2, C. C. P. Its omission renders the complaint fatally defective. Ward v. State, 121 Tex.Crim. Rep.,21 S.W.2d 297, and authorities cited.
The complaint is further defective in failing to follow the language of article 1298, Penal Code, defining the offense. This article reads as follows: "Whoever * * * with intent to vex, harass or injure such person, shall institute or cause to be instituted any criminal prosecution against such other person, shall be fined not less than one hundred nor more than one thousand dollars, or be confined in jail not less than one month nor more than one year."
If appellant instituted the criminal prosecution there is no averment in the complaint to such effect. If appellant caused the prosecution to be instituted, there is no averment to that effect.
The judgment is reversed and the prosecution ordered dismissed.
Dismissed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON STATE'S MOTION FOR REHEARING.