Gremillion v. State

ON MOTION FOR REHEARING.

HAWKINS, Judge.

In his motion for rehearing appellant challenges the disposition made in our original opinion of the questions therein discussed. Our views as reflected in said opinion remain unchanged, and we see no benefit which could result from writing further upon the subject.

In said motion appellant for the first time raises the question and calls attention to the record as reflecting that the information bears a file mark of date January 13th, 1936, whereas the complaint upon which the information was predicated shows not to have been sworn to until January 21st, 1936; the record upon its face thereby indicating that the information was filed eight days before the supporting complaint was made. Art. 415, C. C. P., provides that:

“No information shall be presented until affidavit has been made by some credible person charging the defendant with an offense * *

In Bradberry v. State, 152 S. W., 169, compliance with the statute quoted is demanded. The situation unexplained would demand a reversal of the judgment. However, by affidavits of the Assistant District Attorney who had charge of the prosecution, the Judge of the County Court at Law before whom the case was tried, and the Deputy Clerk in said court, the following facts are shown, and are undisputed. On January 13, 1936, complaint and information were filed attempting to charge appellant with operating an open saloon, and file No. 42,045 given said cause; it was discovered that the complaint and. information were insufficient to charge the offense. On January 21, *5871936, the Assistant District Attorney prepared another complaint and information. The complaint was sworn to on said date, and the new complaint and information were on said date lodged with the clerk; by agreement of appellant himself, his attorney, and the Assistant District Attorney, the new complaint and information were given the same docket number as the other bore, to-wit: 42,045, and without objection the case was tried on February 10, 1936, on the new complaint and information which are the ones found in the transcript. The agreement mentioned was made in open court in the presence of the trial judge and the clerk of the court, whose affidavits support that of the Assistant District Attorney in the particulars mentioned. The new pleadings having been given the same docket number as the old, it may be that by inadvertence the filing date was made the same as in the old pleading; however that may be, it appears to be a fact that they were not given the clerk for filing until January 21, 1936, and after the complaint had been sworn to, hence the conflict in dates to which appellant calls attention in his motion for rehearing appears to be of no moment. From the record now before us it seems to be an effort to escape an agreement made in open court, and to take advantage of an apparent, but not real, conflict in the dates of the jurat on the complaint and the file date of the complaint and information.

The motion for rehearing is overruled.

Overruled.