dissenting.
My views on the question raised upon the submission of this appeal are stated in our original opinion, to which views I adhere.
On rehearing appellant, for the first time, makes the contention that the complaint was sworn to by an assistant criminal district attorney of Dallas County before another assistant criminal district attorney of said county, and is for that reason insufficient. This was not a ground of her motion to quash the complaint and information.
As I understand the majority opinion on rehearing, my brethren uphold this contention, as well as the original contention that Mr. Kincaid, who swore to the complaint, was not a *309credible person because he was an assistant criminal district attorney of Dallas County.
I am not in accord with either holding, and will state my views on the question which has been raised since the original opinion was handed down.
The jurat found on the complaint following the signature of Alvis R. Kincaid reads as follows:
“Sworn to and subscribed before me this the 29th day of September, A.D. 1953.
“(Signed) A. D. Bowie
Assistant Criminal District Attorney of Dallas County, Texas.”
The complaint nowhere indicates that the affiant, Alvis R. Kincaid, was acting in an official capacity when he made the affidavit.
In Arbetter v. State, 79 Texas Cr. Rep. 487, 186 S.W. 769, we held that a county attorney could administer an oath and that the assistant county attorney had the same authority, but the county attorney could not administer the oath through a deputy. Goodman v. State, 85 Texas Cr. Rep. 279, 212 S.W. 171, is to the same effect.
In line with the authorities mentioned, Mr. Bowie made his jurat recite that the complaint was sworn to before him as assistant criminal district attorney, and not before Mr. Wade acting through him as assistant.
No authority is cited which holds that one authorized to administer oaths may not take the affidavit of one who is his deputy or assistant, and of course no authority exists which would prevent the taking of an affidavit by one officer authorized by law to administer oaths because the affiant possessed the identical authority to swear an affiant.
If the fact that the affiant, an assistant criminal district attorney, made the complaint before another assistant affects the validity thereof, it must be upon the basis that an affidavit taken before an attorney in the case is not entitled to be considered by the court.
*310This is the rule relied upon by appellant and he cites in support thereof 2 Texas Jur., Secs. 5 and 10, Affidavit; and Melton v. State, 78 Texas Cr. Rep. 539, 182 S.W. 289.
The rule has been applied to motions for continuance and for new trial, bystanders bills and controverting affidavits. A complaint, however, may be and is generally sworn to before the attorney prosecuting for the state and the rule cannot apply.
It is noted that the information upon which appellant was tried and convicted was signed by Henry Wade, Criminal District Attorney of Dallas County, Texas, and not by either of the assistants mentioned.
It is further observed that if the theory of the majority opinion be correct and neither the criminal district attorney nor an asistant may take the affidavit of another assistant to a complaint, then it must follow that the same rule applies to the affidavit of an investigator for the district attorney’s office.
I am convinced that the affiant Kincaid was a credible person authorized to make the complaint; that Assistant Criminal District Attorney Bowie was authorized to take Kincaid’s affidavit and execute his jurat thereto, and that the complaint so executed was sufficient to support the information signed by Henry Wade, Criminal District Attorney.
I respectfully dissent from the order reversing the conviction and ordering the prosecution dismissed.