
    ANTHONY v. STATE.
    (No. 6488.)
    (Court of Criminal Appeals of Texas.
    Nov. 30, 1921.)
    1. Criminal law <&wkey;2l 1(2) — Oath to complaint, administered by county attorney’s assistant, is insufficient.
    A jurat to a complaint, subscribed and sworn to before the county attorney, by his assistant, is insufficient, so that the complaint should be quashed.
    2. Crimina! law <&wkey;804(2) — Statutory provision for written charge may be waived in misdemeanor cases.
    Refusal to give a written charge in a misdemeanor case held not error, in view of Vernon’s Ann. Code Or. Proc. 1916, art. 749, requiring written charges in criminal cases, but providing that they may be waived by accused’s consent in misdemeanor cases.
    3. Criminal law <&wkey;649( I) — Refusal to permit counsel to retire to office to draw up written charges held error.
    Where defendant in a misdemeanor case requested a written charge, which was refused, and defendant asked time and privilege to prepare and present a proper written charge, refusal to fix a time, and to permit defendant’s counsel to go to his office to prepare such a charge, and requiring counsel to prepare the charge in court, held error.
    Appeal from Harrison County Court; W. H. Strength, Judge.
    
      James Anthony was convicted of adultery, and he appeals.
    Ee ver sed, and prosecution ordered dismissed.
    
      Y. D. Harrison, of Marshall, and Julian P. Harrison, of El Paso, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

This is an appeal from a conviction for adultery in the county court of Harrison county, the punishment being fixed at a fine of $100.

Appellant made a motion to quash, directed at an alleged defective jurat affixed to the complaint. Said jurat appears as follows:

“Sworn to and subscribed before me by A. J. Munden, a credible person, on this the 22d day of December, 1920. E. M. Scott, County Attorney, Harrison County, Texas, by Jas. T. Casey, Assistant.”

The Assistant Attorney General has confessed this to be erroneous. This direct question was before this court in Goodman v. State, 85 Tex. Cr. R. 279, 212 S. W. 171, and the jurat held insufficient. See Arbetter v. State, 79 Tex. Cr. R. 487, 186 S. W. 769.

Appellant complains of the refusal of the court to give a written charge. This is a misdemeanor case. Article 740, Yer-non’s C. C. P., requires the giving of a written charge in a criminal case, but provides that in a misdemeanor case such written charge may be waived by the consent of the accused. It is shown by various bills of exception that appellant requested of the trial court a written charge in this case, and that, when this was refused, he asked time and privilege to prepare and present to the court a proper charge in writing. The trial court appends a qualification to the bill of exceptions taken to his refusal to grant the right and time to so prepare said charge; said qualification stating that he granted the request for time, but that appellant’s attorney refused to prepare such charge unless permitted to go to his office for that purpose, and that the court directed him to proceed with the ease, unless he was willing to prepare such charge in the courtroom. In our opinion the request for time to prepare such charge should have been granted, and a reasonable time having been fixed, it was of no consequence to the trial court where appellant’s attorney prepared such charge, and the court was in error in refusing to allow him to go to his office for such purpose. A fair inference would arise that such attorney might be better prepared for such work in his own office.

The other matters complained of may not arise upon another trial.

The judgment is reversed, and the prosecution ordered dismissed. 
      cgsjPor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     