Stiff v. State

White, Presiding Judge.

In the lower court this cause was originally docketed number 535. The affidavit and information having been lost, application was made and granted to substitute the same. In making the substitute, by inadvertence of the county attorney, the substitute instead of being numbered 535, the original docket number of the case, was numbered 555. Objection was made by the defendant to the substitute upon this ground, and the objection was overruled and the trial ordered to be proceeded with. When the mistake was made to appear, it should have been corrected, either by motion on the part of the county attorney, or the court should have ordered the correction of its own motion.

Opinion delivered April 28, 1886.

Other questions in this case are identical with those decided by us in Withers v. The State, appealed from Denton county;, and in this, as in that case, the charge in the information was that defendant “did, etc., keep, etc., a certain gaming table in Houston Stiff’s saloon in the city pf Denton.” There is no proof going to establish the allegation that the offense was committed “in the city of Dentón.” This proof was essential under the allegation in the information. (See Withers’s case, ante 210.)

The judgment is reversed and the cause remanded.

Reversed and remanded.