The appellants moved in the court below to quash the affidavit and information, and after verdict moved in arrest of judgment, on the ground substantially that the affidavit upon which the information was founded is not sufficient in law to support this prosecution, for the reasons that the same affidavit had been used as a basis for another prosecution which had been nolle-prossed, and that the affidavit was a file-paper in another cause and the court could not allow it to be withdrawn and used in this case.
It is stated in a bill of exceptions that, on the first day of the term, an attorney who was aiding the county attorney in the prosecution of this case took, without leave of the court, in open court, and over objection by the defendants, from the files of another case the affidavit in question and caused the clerk to number and file it in *83this case; that the court’s attention was called to it before the trial of this cause, and objection was made to the proceeding, which was overruled by the court. But the bill of exceptions further states that the affidavit referred to was filed by permission of the court. The precise objection to the employment of this affidavit is that it had been used as the foundation of another suit against the same parties, which the State had declined to further prosecute, and was therefore functus officio; and we presume that the first case had been dismissed when the affidavit was attempted to be used in this case.
We are of opinion that the objection to the affidavit is not well taken. A question quite similar to the one here presented came before this court in Goode v. State, 2 Texas Ct. App. 520. In that case the court said: “ The fact that an insufficient or invalid information had been set aside or dismissed would not necessarily set aside and render null and void a good affidavit or complaint upon which it was based. We can see no objection to the use of the same complaint or affidavit- as a basis or ground for a new and sufficient information; we fail to perceive how the rights of the defendant could in any manner be injured or prejudiced by such a course.” We see no sufficient reason to change the opinion thus expressed in Goode’s case, or that the reason for the ruling is changed because the case had been nolle-prossed instead of being dismissed. If, indeed, they are not technically the same, they both have the same effect upon the case.
We are of opinion, however, that the court below should have granted the defendants a new trial on the ground of the insufficiency of the evidence. The principal witnesses both for the State and the defendants seem to be relatives of each other and related to the defendants as well as to the injured person. It appears that the person alleged to have been falsely imprisoned was an orphan boy, who by common consent had been placed under the *84care and control of one of the defendants, who wTas the uncle by marriage of the injured party. There is no testimony that he had violated the trust confided in him, or that he had failed to discharge the duties imposed upon him by the relation he bore to the injured party, who seems to be a mere boy and in need of some one to advise and control him. The boy did not testify at the trial, and the testimony is very meagre indeed that any force was employed in causing the boy to return home. No good cause is shown for the boy’s leaving his uncle’s roof, of that he objected to returning with him to it, the only home he is shown to have had; nor is it attempted to be shown that his home was other than a pleasant one.
We are of opinion the proofs do not sustain the charge of false imprisonment, and on this account the judgment will be reversed and the cause remanded for a new trial.
Reversed and remanded.