
    DUNCAN v. STATE.
    (No. 9519.)
    (Court of Criminal Appeals of Texas.
    Nov 18, 1925.
    Rehearing Denied Jan. 27, 1926.)
    1. indictment and information <&wkey;4l (3) — Complaint for unlawfully carrying pistol, sworn to before justice of the peace, held sufficient.
    Complaint for unlawfully carrying pistol, sworn to before.justice of the peace, on which information was filed by county attorney, was sufficient, under Vernon’s Ann. Code Cr. Proe. 1916, art. 479, and Code Cr. Proc. 1925, art. 415.
    2. Indictment and information <@=»I22(I)— Complaint held not to vary from information because of spelling.
    Complaint for carrying “pistole” did not vary from information, in which word was correctly spelled.
    On Motion for Rehearing.
    3. Criminal law «&wkey;244 — Failure'of magistrate to certify, seal, and deliver proceedings to clerk of proper court held not cause for reversal.
    In prosecution for unlawfully carrying pistol on complaint sworn to before justice of the peace, on which information was filed by county attorney, 'failure of magistrate' in examining court to certify, seal, and deliver to -clerk of proper court proceedings of examining court was not cause for reversal.
    Appeal from Leon County Court; W. D. Lacey, Judge.
    
      Lige Duncan was convicted of unlawfully-carrying a pistol and Re appeals.
    Affirmed.
    Jas. T. Ryan, of Centerville, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   HAWKINS, J.

Conviction is for unlawfully carrying a pistol. The punishment is by fine of $100.

The jurisdiction of the county court was questioned,. because the complaint was sworn to before a justice of the peace, and because there was no transcript or certificate of any proceeding bad in the justice court. The record suggests nothing more than that the complaint was sworn to before the justice of the peace, and information was filed thereon by the county attorney. Article 479, Vernon’s C. C. P. (article 415, 1925 Codification), provides that complaint may be sworn to by any officer authorized to administer the oath. Lindley v. State, 58 Tex. Cr. R. 346, 123 S. W. 141; Gentry v. State, 62 Tex. Cr. R. 497, 137 S. W. 696.

The word “pistol” was correctly spelled in the information. In the complaint it was spelled “pistole.” The point is made that this constitutes a variance between the complaint and information. The misspelling of the word in the complaint in no way affected the sense of the instrument. The meaning could not be mistaken. See section 490, Branch’s Ann. Tex. P. C., for authorities; also Garza v. State, 87 Tex. Cr. R. 537, 222 S. W. 1105.

No statement of facts is brought forward in the record.

The judgment is affirmed.

On Motion for Rehearing.

MORROW, P. J.

We are unable to conclude that á reversal of the judgment of conviction in this case can be justly founded upon the failure of the magistrate in the examining court to certify, seal, and deliver to the clerk of the court the proceedings in the examining court. The purpose of this statute is that these records may be preserved for use by the grand jury and the prosecuting officers. The ease of Foat v. State, 28 Tex. App. 527, 13 S. W. 867, cited by appellant, was one in which the appeal was from a judgment forfeiting the appearance bond. The holding was that the forfeiture was not valid, unless bond was required by an entry made upon the docket in accord with the statute. The issue on appeal was whether an order requiring bond had been made. The record failed to show such -an order. The distinction between that and the present contention seems obvious: In Eoat’s Case, supra, the validity of the bond upon which the judgment rested depended upon the entry of an order of the magistrate. In the present case, the proceedings of the examining court, so far as we are able to perceive, bear no relation to the matter in hand. All that we find is that a complaint charging appellant with an offense was made by Kyle and sworn to before Adkisson, a justice of the peace,'and that upon this affidavit, filed in the county court, an information was made by the county attorney, and a trial in the county court had on the merits.

In the case of Kimbrough v. State, 28 Tex. App. 367, 13 S. W. 218, to which appellant also refers, the question before the court was whether the grand jury used diligence to ascertain the name of the person from whom the property was taken. The proceedings of the magistrate court, if filed in accord with the statute (article 347, C. C. P.), would have revealed the name. At least, such was the contention of Kimbrough. The court held that, in the absence of evidence to the contrary, the presumption would prevail that the proceedings were certified as required by article 347, supra, and -were available to the grand jury. The papers which were presumed to have been in the possession of the grand jury when the indictment was found not being produced by the prosecuting officer or made available-to the appellant, the court held competent parol evidence to show that on the docket of the magistrate the name of the injured • party did appear. We fail to perceive the analogy to the present case, in which the attempt is to make the mere absence of the records of the magistrate cause for reversal, without claiming that the failure to certify them (if in fact there was such failure) had any bearing on the merits.

The motion for rehearing is overruled. 
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