Phariss v. State , 136 Tex. Crim. 504 ( 1939 )

The offense is selling whisky in a dry area the punishment, a fine of $100.00.

There is no proof in the record in support of the averments in the complaint and information that McCulloch County is a dry area. The conviction cannot stand with the record in such condition. Cunningham v. State, 102 S.W.2d 413. We are not authorized to consider the affidavits filed in this court to the effect that McCulloch County is a dry area.

With permission of the court the county attorney amended the complaint by interlining certain phrases. Such action invalidated the complaint. We quote from Patillo v. State, 3 Tex. App. 442[3 Tex. Crim. 442], as follows: "Clearly the court had no right to amend, or permit any one else to amend, the affidavit. Affiant himself could not have done so without being sworn anew as to the amended statement. Whenever the court permitted the county attorney to amend the affidavit, it ceased to be the act of affiant; * * * "

The judgment is reversed and the prosecution ordered dismissed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.