At a former day of this term the judgment herein was reversed and the prosecution ordered dismissed. This opinion is in conflict with that in Bailey v. State, *Page 271 41 Tex. Crim. 158, and being in contravention of that opinion the effect of this opinion is to overrule it. The Assistant Attorney-General has filed a motion for rehearing, basing it upon the Bailey case. We have reviewed the Bailey case and the reasoning, in connection with what we have said in this case and the statutes bearing upon the question, and are of opinion that the Bailey case went too far and placed a construction upon the statute not warranted. Articles 34 and 35 authorize the county and district attorneys to take affidavits that an offense has been committed in their respective districts or counties, and prepare proper pleadings, etc., and article 36 authorizes them, for the purposes mentioned in the two preceding articles to administer oaths. This is as far as our statutes have gone authorizing those two officers to administer oaths in criminal cases, or in regard to criminal matters. Article 391 authorizes the issuance of procees to bring witnesses before the court to examine into violations of the gaming laws, and authorizes the county and district attorneys to cause this process to issue. But as said in the original opinion this seems to end their authority. When this has been done, under article 941, Code Criminal Procedure, the examining court may look into the matter and interrogate witnesses under oath, but it does not clothe the county and district attorney with such judicial power nor undertake to do so. Therefore we are of opinion that the Bailey case is wrong, and should be overruled to this extent. We believe that the original opinion is correct, and therefore the motion for rehearing is overruled.
Overruled.
Brooks, Judge, absent.