Taylor v. State , 44 Tex. Crim. 437 ( 1903 )

Appellant was convicted of violating the local option law, and his punishment assessed at a fine of $25 and twenty days confinement in the county jail.

Among other things, the motion for new trial attacks the complaint and information (1) because the complaint was not sworn to as required by the statute; and (2) that neither the complaint nor information were ever filed in the county court. Article 277, Code of Criminal Procedure, sets out the requisites of a complaint, the fourth subdivision of which is that "it must be in writing and signed by the affiant, if he is able to write his name; otherwise he must place his mark at the foot of the complaint." The record shows the complaint was sworn to and subscribed before the county attorney on the 5th of May, 1902, and on that day filed by W.S. Terrell, justice of the peace of precinct No. 1, Collin County. We find the signature, or what purports to be the signature, his to the complaint, in this language: "John Steele." It does mark not show that affiant made his mark, and we are asked to presume, because the expression "his mark" is found in connection with his name, that therefore he was unable to write his name, and that there was an omission in not signing it by his mark. If, as a matter of fact, he did not write his name, this should have been shown. Where a party relies upon matters of fact to quash a complaint, information, or indictment, the verity of the fact, if it exists, must be shown by the attacking party. The presumption of regularity obtains, unless the contrary is shown, in matters of this sort, when attacked in motion for new trial, or in arrest of judgment, or on appeal.

As the record is presented to us, the affidavit and information were not filed by the clerk of the county court; that is, his filemark was not placed on either instrument. The point was made in motion to arrest the judgment, as well as in motion for new trial, that this was fatal to conviction. This matter matter comes too late after conviction. It should have been urged in limine. The same rule applies in regard to filing affidavit and information as in case of indictment. The court, therefore, did not err in overruling this contention. Jessel v. State,42 Tex. Crim. 72.

It is also contended that the evidence is not sufficient to support the conviction. The State's evidence shows that the purchaser of the intoxicant from appellant became very much intoxicated from drinking it — so much so that he was arrested and confined, and subsequently punished. Appellant contends that the liquid he sold was cider manufactured in the town of McKinney out of nonintoxicants, and that no amount of it could produce intoxication. If the State's testimony is true — and the jury believed it — the liquid sold was intoxicating, for there is no question that the purchaser drank it and became very much intoxicated, and he swears that this is the liquid that produced the intoxication. Under this state of case, this court is not authorized to reverse the judgment.

There being no error in the record, the judgment is affirmed.

Affirmed.