
    THOMAS v. STATE.
    (No. 11012.)
    Court of Criminal Appeals of Texas.
    June 24, 1927.
    Criminal law <&wkey;970(5) — Overruling motion in arrest of judgment held error where complaint and information bearing county attorney’s signature were signed hy stenographer in his absence (Code Cr. Proc. 1925, arts. 415, 763).
    Overruling motion in arrest of judgment held error, under Code Cr. Proc. 1925, arts. 415, 763, in prosecution for unlawfully carrying a pistol, where complaint, which purported to be signed and sworn to, in information, which purported to be signed by county attorney, were in fact signed by county attorney’s stenographer in his absence.
    Commissioners’ Decision.
    Appeal from Harrison County Court; John W. Scott, Judge.
    John Thomas was convicted of unlawfully carrying a pistol, and he appeals.
    Reversed, and cause dismissed.
    Hall, Scott, Casey & Hall, of Marshall, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both -of Austin, for the State.
   BAKER, J.

The appellant was convicted of unlawfully carrying a pistol, and his punishment assessed at 6 months in jail,

The record discloses that the appellant was charged by complaint and information with unlawfully carrying a pistol on or about December 12, 1926. The affidavit purports to have been signed and sworn to by J. B. Henderson before John E. Taylor, the county attorney, and the information based thereon purports to have been signed also by the said John E. Taylor, as county attorney.

After the appellant was convicted, he filed a motion in arrest of judgment, alleging that the complaint upon which he was convicted was invalid for the reason that the purported affiant did not appear before an officer authorized by law to administer oaths and did not make any oath to said complaint, and that, although said complaint purported to be signed and sworn to before the county attorney and the information purported to be signed by the said county attorney, neither of these statements was in fact true. In support of this motion in arrest of judgment evidence was heard by the court, which showed without contradiction that the complaint was not sworn to before the county attorney and that the information was not signed by him, but that in both instances the county attorney’s stenographer, in his absence, signed his name to said documents. The action of the court in overruling appellant’s motion in arrest of judgment is brought before this court for review in bill of exception No. 1.

Article 415, C. C. P. (1925), states that:

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

Article 763, O. O. P., states that a motion in arrest of judgment shall be granted upon any ground which may be good upon exception to an indictment or information for any substantial defect therein. This court, speaking through Presiding Judge Morrow in the case of Thomas v. State (No. 11014) 296 S. W.-, decided June 15, 1927, yet [officially] unreported, wherein the facts were similar to those in the instant case, held that the complaint was void and reversed and dismissed the case, citing Stacy v. State, 96 Tex. Cr. R. 499, 258 S. W. 475, and Day v. State, 105 Tex. Cr. R. 117, 286 S. W. 1107. Under the undisputed facts in the instant case and the authorities, supra, it is plain that the county judge, in overruling appellant’s motion in arrest of judgment, fell into error. ( >

The judgment of the trial court is therefore reversed and the cause ordered dismissed.

PER OURIAM. 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. 
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