
    SPROWLES v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 31, 1912.)
    1. Indictment and Information (§ 41)— Complaint — Time of Filing — Filing after Information.
    Under the statute, a complaint must be made and filed before the information is filed, so that the information was not sufficient, where, when it was filed, the complaint was not sworn to and the affidavit was not made to it.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 163-169; Dec. Dig. § 41.]
    2. Weapons (§ 17) — Unlawfully Carrying —Instructions—Conformity to Evidence.
    Accused claimed, in a prosecution for unlawfully carrying a pistol, that the city marshal wanted accused to assist him in keeping order on the night before the alleged unlawful carrying, and gave him a pistol for that purpose, and told him to leave it with T. the following morning, and that he did not see T. then, but left it with another, from whom the marshal subsequently obtained it. The court charged that the authority of one deputized by an officer to execute process to carry a pistol terminates when the purpose of his appointment is accomplished, and that if the city marshal, who was a peace officer, summoned accused to aid him on th'e occasion on which defendant is claimed to have carried the pistol, or if the jury have a reasonable doubt thereof, they should acquit. Held, that the instruction did not adequately present accused’s theory.
    [Ed.. Note. — For other cases, see Weapons, Cent. Dig. §§ 20-23; Dec. Dig. § 17.]
    Appeal from Grayson County Court; J. Q. Adamson, Judge.
    Ethel Sprowles was convicted of unlawfully carrying a pistol, and appeals.
    Reversed and remanded.
    Cox & Cox, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

The complaint, which forms the basis of the information, was filed on the 29th day of December, 1910, and was sworn to on the 30th day of December, 1910, the day after the filing. The information was filed on the 29th of December, 1910, one day before the affidavit made to the complaint. It is a requisite, under the statute, ^that a complaint be made and filed before the information. An information without the supporting complaint cannot form a pleading in a misdemeanor ease. At the time the information was filed the complaint was not sworn to, nor was the affidavit made to it, as shown by the jurat of the officer, until the day after the filing of the information. This is not sufficient. Thornberry v. State, 3 Tex. App. 36; Lanham v. State, 9 Tex. App. 232; Jennings v. State, 30 Tex. App. 428, 18 S. W. 90; Womack v. State, 31 Tex. Cr. R. 41, 19 S. W. 605; Watson v. State, 45 S. W. 718.

2. It is urged for reversal that the appellant’s side of the case was not submitted to the jury. The matter is not sufficiently presented to require the court to reverse, inasmuch as charges were not asked and exceptions taken in such manner as the law requires in misdemeanor cases. The theory of the appellant was, and he so testified, that he was requested by the city marshal of Howe to assist him to do police duty, and assisted said marshal in so doing as city marshal on Friday night, the 25th of December, 1910. He asked a special charge submitting this theory, which was refused. The court gave this charge: “Where a party has been deputized by an officer to execute any process, his authority to carry a pistol terminates when the purpose of his appointment has been accomplished. You are further instructed that the city marshal of Howe is a peace officer, and if you believe from the evidence that said city marshal summoned the defendant to his aid on the occasion on which the defendant is alleged to have carried the pistol, or if you have a reasonable doubt as to this, you will acquit him.” This hardly presents to the jury appellant’s side of the ease. It does present the side of the state. Appellant’s theory was that the marshal was having trouble on the night of the 25th of December with some parties, or perhaps there was some drinking going on, and wanted him to assist in keeping down trouble, and armed him for this purpose, and told appellant to leave the pistol at a certain place, or, rather, with Mr. Thompson, on the following morning. Appellant says he did not see Mr. Thompson, but left the pistol with Ross McCoy. From Mr. McCoy the marshal obtained the pistol subsequently. If appellant was summoned or authorized to assist in policing the town during Friday night, December 25th, and was armed by the marshal for that purpose, and was instructed to return the pistol next morning to Mr. Thompson, he would not be guilty of violating the law in carrying the pistol during the time for which he was summoned or requested to act. The mere fact that he did not return it to Thompson would make no difference, if at the end of the service he left it with Mr. McCoy. Because he could not find the other man would not constitute him a violator of the law. The law should be applied to this phase of the evidence pertinently upon another trial.

The judgment is reversed, and the cause is remanded.  