The State files a persuasive motion for rehearing to which is attached a printed circular of size and general appearance equal to two two-sided newspaper sized sheets, upon all four sides of which appear advertisements of the prospective sale of a stock of merchandise apparently known as Washer's, which had theretofore been bought from "The bankrupt court," and was to be sold at such prices, — in many instances set out, — as would effect an alleged saving of one-half or more, — evidently to the purchaser. From the motion it is made to appear that said circular was attached in the beginning of this prosecution to the "information and complaint, marked Exhibit A," but that on the trial hereof said circular was detached therefrom and offered in evidence, and had not been again attached to the pleadings, and hence did not appear in the transcript on appeal as a part of said State's pleadings. We regret that not enough is shown in this regard in any event to justify the granting of the motion. The complaint is the foundation of a prosecution in the county court, made, signed and sworn *Page 191 to by some person before a proper officer. After the complaint has been made, under our law it becomes the duty of the State's attorney to prepare and file, — as his pleading based on the complaint, — an information, a document similar in language to the complaint, but signed and presented by the State's attorney charging the accused in such court with the offense set out in the complaint. We take it that if an exhibit can be properly attached to the complaint, a copy thereof must also be attached to the information, or else set out therein. In our judgment a single document or exhibit can not be attached to both the complaint and information. In other words, there is but one exhibit attached to the State's motion for rehearing. Both in the motion of the State, to which appears attached the original affidavit and information, and in the certificate of the trial judge which is also attached to said motion, — it is stated that the attached advertisement marked Exhibit A was attached to the "Complaint and information." As above stated, but one advertisement or circular is so attached. If same had been attached to the complaint, but not to the information, or vice versa, there would manifestly have been a variance between these two necessary parts of the State's pleading, when there should have been complete or substantial consonance between them. Whether attached to the one or the other, we do not know. As said, — if to one and not the other, the pleading was insufficient. If the one exhibit was attempted to be set up as an exhibit to both complaint and information, the State's pleading was also insufficient. We are impaled on one horn or the other of the dilemma, and therefore must overrule the motion.
We desire to say further that we doubt very much the propriety of such exhibits in a criminal prosecution. It would be practically impossible to put them in the reports, if necessary, as a part of an opinion construing the complaint or information in passing upon a motion to quash. In our opinion if any part of such documents were deemed to furnish support for a prosecution under this statute, that part so relied on should be selected by the pleader and set out in his complaint as well as his information, with appropriate averments as to its materiality and falsity, as in libel cases. Potter v. State, 99 Tex.Crim. Rep..
In article 1554, P. C., defining this offense, when the charge relates to untrue advertising to effect the sale of merchandise, the advertisements in question must appear in averment and proof untrue in some material matter relating to the character or cost of such merchandise, as will be seen from analysis of the *Page 192 terms of said statute. It would not appear difficult for the State to select that part of such advertisement upon which reliance is had in a particular case, and by specific averment bring forward the issue in such manner and form as that both, before the trial court and jury as well as this court, waste and irrelevant matter might be eliminated and not obscure or hinder adjudication of the question of guilt. To set out four newspaper sized sheets of circular matter either as an exhibit, or as copied in full in the State's pleading, when reliance is had upon only a small part thereof, would be both unnecessary and confusing.
For the reasons above mentioned, the motion for rehearing is overruled.
Overruled.