Fricks v. State
124 S.W. 922
Tex. Crim. App.
1910
Check Treatment
McCORD, Judge.

This is аn appeal from the' Corporation Court of the city of Texarkana. Appellаnt was tried and convicted of an aggravated assault in said court. At the first called session of the Thirtieth Legislature, in 1907 (see Special Laws, secs. 131-2, p. 851), the charter of the city of Texarkana in Bowie County was amended, and within the limits of said corporation there was created what is called a Corporation Court of the city of Texarkana, Texas, and jurisdiction was conferred in said court to try all misdemeanor criminal cases arising within the corporate limits of said city arising under the criminal laws of the State of Texas, and the ‍‌‌​​​​​​‌​​​‌​‌​‌‌‌​‌​​​​​​‌‌‌‌​​​‌‌​‌​‌‌‌‌‌‌​‌‌‍jurisdiction of the County Court of Bowie County, Texas, was made to conform to the changes made in said Corpоration Court. The Thirty-first Legislature amended the charter of the city of Texarkana, and among other provisions of said amendment, it was provided that appeals should be had from said Corporation Court directly to the Court of Criminal Appeals of Texas from • every conviction had for violation of the penal laws, and that appeals from said Corpоration Court shall in all regards as far as practicable be governed by the laws of the State of Texas regulating appeals from the County Court to the Court of Criminal Appeals.

This рreliminary statement is made to show the authority by which this case is in this court. No question is made on this appeal as to the constitutionality ‍‌‌​​​​​​‌​​​‌​‌​‌‌‌​‌​​​​​​‌‌‌‌​​​‌‌​‌​‌‌‌‌‌‌​‌‌‍of the court or of the right of appellant tо appeal directly from the Corporation Court to this court. In the case of Ex pаrte Abrams, 56 Texas Crim. Rep., 465, 120 S. W. Rep., 883, the constitutionality of the law conferring the power upon the ‍‌‌​​​​​​‌​​​‌​‌​‌‌‌​‌​​​​​​‌‌‌‌​​​‌‌​‌​‌‌‌‌‌‌​‌‌‍Corporatiоn (lourt to try cases was upheld by this court,

*102 Counsel for appellant, in their brief, insist that the court below erred in not sustaining appellant’s motion to quash the complaint, and the contentiоn is made that the complaint is insufficient because it states that the affiant has good reason to believe and does believe that appellant had committed an aggravated assault, and that such an affidavit will not authorize an arrest and prosecution, that the same is violative of section 9, article 1, of the Constitution, which reads as follows: “The people shall be secure ‍‌‌​​​​​​‌​​​‌​‌​‌‌‌​‌​​​​​​‌‌‌‌​​​‌‌​‌​‌‌‌‌‌‌​‌‌‍in their persons, houses, papers, and possessions from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probаble cause, supported by oath or affirmation.” A complaint made on information аnd belief has been before our court in several cases. An affidavit similar to the affidavit in this сase has been upheld in the following cases: Brown v. State, 11 Texas Crim. App., 451; Clark v. State, 23 Texas Crim. App., 260; Hall v. State, 32 Texas Cr. Rep., 594; Anderson v. State, 34 Texas Crim. Rep., 96, and Smith v. State, 45 Texas Crim. Rep., 411. It may bе stated, however, that in none of the above cited cases was the constitutional question raised. The court simply held in those cases that a complaint which alleged that affiant had good reason to believe and did believe that a certain party committed an ‍‌‌​​​​​​‌​​​‌​‌​‌‌‌​‌​​​​​​‌‌‌‌​​​‌‌​‌​‌‌‌‌‌‌​‌‌‍offense was sufficient. Without committing ourselves as to what might be our views were this an original рroposition before us, we do not feel justified in breaking away from the unbroken line of authоrities upon this question. In the ease of Dupree v. State, 119 S. W. Rep., 301, our Supreme Court had occasion to review section 9, article 1, of the Constitution in the search and seizure feature оf the section, and while that court did not hold that an áffidavit founded upon belief would invalidate the warrant, as the case went off on other grounds, yet the reasoning of the Supreme Court in thаt case rather supports the position taken by appellant here. However, in viеw of the unbroken line of authorities on the subject we do not feel disposed to adoрt a new or different rule. Article 257 of the Code of Criminal Procedure in setting forth what a comрlaint shall contain, states that the affiant shall swear that a crime has been committed, оr that he has good reasons to believe and does believe that a certain pаrty committed the crime. This is the only article of the Code of Criminal Procedure that provides that an affidavit may be made in this way.

We have not before us the charge of the court bеlow; the record contains two bills of exception as to questions propounded tо the State’s witnesses when they were on the stand as to what took place just before the assault was made. This was part of the res gestae of the transaction, and was admissible.

Finding no errors in the record, the judgment is in all things affirmed.

Affirmed,