The State, by and through the County Attorney in and for Gregg County, has filed a motion for a rehearing in which it is contended that we erred in holding upon original submission that the State vitiated the complaint and information by striking out the word "gross" preceding the word "negligence." It seems to be the State's contention that the word "gross" was surplusage. It may be true that the word "gross" stricken out by the State was merely surplusage; yet it was an alteration of the affidavit and information in substance and this the law will not tolerate. The vice lies in the alteration of a complaint and information after it had been sworn to by the affiant and filed. We do not intend to hold that the complaint and information are not sufficient with the word "gross" stricken out, but we do hold that the County Attorney had no legal right to alter the same by striking out a word in the charging part thereof after it had been filed.
In the case of Ex Parte Bain, 121 U.S. p. 1, the trial court permitted the district attorney to strike from the charging part of the indictment the words "comptroller of the currency and" as being surplusage. The Supreme Court of the United States in reviewing the question held that although the words were surplusage the act of striking them out vitiated the indictment. See also Rutherford v. State, 74 Tex. Crim. 617. *Page 613
Believing that the case was properly disposed of on original submission, the motion for a rehearing is overruled.
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.