Willis v. State

389 S.W.2d 464 (1965)

Johnnie WILLIS, Appellant,
v.
The STATE of Texas, Appellee.

No. 38202.

Court of Criminal Appeals of Texas.

April 28, 1965.

Richard D. Bird, Childress, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

Appellant was convicted of unlawfully selling beer in a dry area and his punishment was assessed at six months in jail and a fine of $500.

The state does not seek an affirmance of the conviction, because it is shown by bill of exception #2 that appellant did not enter a plea in the case. Such position is well taken, as a plea is necessary in every criminal case and where none is entered the trial is a nullity. See: Lumsden v. State, Tex.Cr.App., 384 S.W.2d 143, and cases therein cited.

An affirmance is also not sought for the further reason that bill of exception #3 shows that the complaint was not sworn to by the complainant. This position is also well taken, as a complaint which is not sworn to will not support a prosecution by information. Art. 415, Vernon's Ann.C.C. P.; Colbert v. State, 166 Tex. Crim. 431, 314 S.W.2d 602; Purcell v. State, Tex.Cr.App., 317 S.W.2d 208.

The judgment is reversed and the prosecution is ordered dismissed.

Opinion approved by the court.