Malz v. State

HENDERSON, Judge. The appellant was convicted, under Penal Code, Art. 742a, for theft, by conversion of property intrusted to him *450 as a bailee, and his punishment assessed at a fine of $75 and sixty days’ imprisonment in the county jail, and from the judgment of the lower court he prosecutes this appeal. The only contention of appellant that requires to be noticed is the exception taken by him to the action of the court in allowing the County Attorney to amend the complaint on which the information in this case was predicated. It appears the complaint originally read, in the beginning part, “Personally appeared, before the undersigned authority, R. L. Winfrey,” and it was signed, and appears ot have been sworn to by William Jackson. A motion to quash was made on the ground that, in the body of the said complaint, it appeared to have been made by R. L. Winfrey, and not William Jackson. In response to the motion to quash, the County Attorney filed an answer, showing that the complaint, as shown by the affidavit, was signed and sworn to by William Jackson, and asked leave to amend the complaint by erasing the name “R. L. Winfrey,” and inserting “William Jackson,” which was permitted by the court. To the action of the court the defendant reserved his bill of exception. Code Crim. Proc., Art. 431, provides: “An information shall not be presented by the District or'County Attorney until oath has been made by some credible person, charging the defendant with an offense. The oath shall be reduced to writing and filed with the information. It may be sworn to before the District or County Attorney who, for that purpose, shall have power to administer the oath, or it may be made before any officer authorized by law to administer oaths.” Article 230 states: 1 ‘The complaint shall be deemed sufficient without regard to form, if it have these substantial requisites: (1) It must state the name of the accused, if known, and if not known must give some reasonably definite description of him. (2) It must state that the accused has committed some offense against the laws of.the State, naming the offense, or that the affiant has good reason to believe, and does believe, that the accused has committed such offense. (3)' It must state the time and place of the commission of the offense as definitely as can be done by the affiant. (4) It must be in writing, and signed by the affiant, if he is able to write his name, otherwise he may place his mark at the foot of the complaint.” In the body of the complaint it is not necessary to state the name of the party making the complaint or affidavit at all. The statute requires that the name of the party making such complaint must be signed at the foot of the complaint, and not elsewhere. The complaint in this instance was signed, at the foot thereof, by the person making the complaint. This, with reference to the name of the affiant, was all that was required, and the name, as stated in the body of the complaint, should have been rejected as. surplusage, or the discrepancy cured by amendment; and it was competent, as was done, to erase the name of Winfrey and insert that of Jackson. The evidence in the case supports the verdict, and the judgment is affirmed. Affirmed. Davidson, Judge, absent.