156 S.W.2d 526 | Tex. Crim. App. | 1941
Conviction is for possessing beer and wine for the purpose of sale in dry territory, punishment assessed being a fine of $100.00.
Prosecution was by complaint and information. The original transcript did not contain the complaint but it is brought before us by supplemental transcript. As. it appears therein it is not sufficient as a basis for the information.
Subdivision 2 of Art. 222 C. C. P. provides that the complaint “must show that the accused has committed some offense against the laws of the State, either directly or that the affiant has good reason to believe, and does believe, that the accused has committed such offense.” The complaint here omits the averment that affiant “does believe.” It has been the consistent holding of the court that such averment is indispensable. See Branch’s Ann. Tex. P. C., Sec. 478, and cases there cited; also Smith, v. State, 103 Tex. Cr. R. 228, 280 S. W. 581; Ward v. State, 21 S. W. (2d) 297; Gribble v. State, 133 Tex. 357, 111 S. W. (2d) 276; Cook v. State, 137 Tex. Cr. R. 492, 132 S. W. (2d) 404.
The judgment is reversed and the prosecution ordered dismissed.
