
    COMPTON v. STATE.
    (Court of Criminal Appeals of Texas.
    June 11, 1913.)
    1. Indictment and Information (§ 41)— Information—Complaint—Necessity.
    An information must be based on a complaint.
    [Ed. Note.—Eor other cases, see Indictment and Information, Cent. Dig. §§ 152, 163-169; Dec. Dig. § 41.]
    2. Disorderly House (§ 6)—Offenses—Per-sons Liable.
    One who sells real estate to a purchaser who uses it for immoral purposes is not guilty of an offense, but one who leases property with knowledge that the lessee will use it for immoral purposes is guilty.
    [Ed. Note.—Eor other eases, see Disorderly House, Cent. Dig. §§ 6, 9-13; Dec. Dig. § 6.]
    3. Indictment and Information (§ 70)— Information—Formal Requisites.
    An information by a county attorney must allege that he presents to the court that accused has committed the offense charged, and the second count of an information which reads, “and the affiant aforesaid, upon his oath aforesaid, further deposes and says that on said above date and at said time and place,” is objectionable as merely stating that affiant charged accused with committing an offense, but not presenting that accused committed the offense charged.
    [Ed. Note.—Eor other cases, see Indictment and Information, Cent. Dig. § 192; Dec. Dig. § 70.]
    Appeal from Williamson County Court; Richard Critz, Judge.
    C. Y. Compton was convicted of crime, and he appeals.
    Reversed and remanded.
    Nunn & Love, of Georgetown, and W. A. Barlow, of Taylor, 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
    
   HARPER, J.

Appellant was prosecuted and convicted under an information containing two counts.

As there is no complaint in the record upon which to base an information, it .would be our duty to reverse and dismiss the ease, for, as said in Branch’s Criminal Law, “There is no authority for the presentment of an information if it is not based upon a complaint, and on appeal from a judgment of conviction where an information was presented, the complaint as well as the information must appear in the transcript.” Thornberry v. State, 3 Tex. App. 37; Turner v. State, 3 Tex. App. 551; Casey v. State, 5 Tex. App. 462; Lackey v. State, 14 Tex. App. 164; Rose v. State, 19 Tex. App. 470; Wadgymar v. State, 21 Tex. App. 459, 2 S. W. 768; McVea v. State, 35 Tex. Cr. R. 1, 26 S. W. 834, 28 S. W. 469; Dickinson v. State, 38 Tex. Cr. R. 472, 41 S. W. 759, 43 S. W. 520; Diltz v. State, 56 Tex. Cr. R. 128, 119 S. W. 92. But inasmuch as it will be necessary to reverse and remand the case on other grounds, we have decided to reverse and remand, with instructions to the county judge, if no complaint was in fact filed, to dismiss the case from the docket.

As stated before, the information contains two counts, but the court in his charge submitted to the jury only the second count in the information, and correctly so, for the evidence would not sustain a conviction on the first count, and shows that if appellant is guilty, if guilty of any offense, only of leasing the house for immoral purposes, there is no evidence that he was interested in the business carried on in the house as charged in the first count. There was a sharp conflict in the evidence as to whether he leased or sold the premises to Dollie Steed. If he sold the premises he would be guilty of no offense, as the law places no limitation as' to whom a person shall sell his property. If he leased the house to Dollie Steed, knowing the purposes for which she intended to use it, and permitted her to so use it, he would violate the law. But as this case will be reversed, we think it would be improper for us to comment upon the testimony. Consequently, several questions are raised which we will not discuss, but will say that the deed from appellant to Ida. Collins, dated November 12, 1906, would shed no light on the transaction with Dollie Steed in March, 1911, and on another trial it should not be admitted.

Appellant moved to quash the second count in the information (the one under which he was convicted) and the motion should have been sustained. The second count reads: “And the affiant aforesaid, upon his oath aforesaid, further deposes and says that on said above date and at said time and place,” etc. Appellant contends this is not a “presentment of an information,” but is an oath in the nature of a complaint, and his contention should have been sustained. In the case of Zinn v. State, 151 S. W. 825, this court held in an opinion by Presiding Judge Davidson: “The contention is made that the information does not present in the court, under the last count mentioned and quoted, that appellant had violated the law; that it only presents to the court that the affiant further deposes and says. This is not sufficient. The information may allege' that the affidavit was filed, but it must allege that the county attorney presented in the court that appellant did the prohibited thing. It is not sufficient to present that there was an affidavit filed to the effect that appellant committed the offense, but the county attorney must directly present the fact that he charges and presents in the court that appellant did the act of -which complaint is made. The first count in the information was properly presented; but it does not present that appellant, on either of the subsequent counts in the information, committed the offense. It only states the fact that the affiant, whoever he may have been, charged appellant with committing the offense. It nowhere, in connection with the third count, presents that appellant violated the law as charged in that count.” This opinion is so fully applicable to the facts in this ease, we merely adopt it without further remarks.

The judgment is reversed, and the cause is remanded.  