Johnson v. State

HENDERSON, Judge.

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

In the court below" appellant filed a motion to quash the complaint on the ground that the city attorney was not authorized to take an affidavit to a complaint as the basis of a prosecution for violating the local option law. Articles 34 and 36 of the Code Criminal Procedure especially authorize complaints to be made before district or county attorneys, on which an information may be based. Article 467, Code Criminal Procedure, provides, in substance, that the information shall not be presented by the district or county attorney until an oath has been made by some credible person charging defendant with an offense. The oath shall be reduced to writing and filed with the information. It may be sworn to before the district or county attorney who for that purpose shall have the power to administer the oath, or may be made before any officer authorized by law to administer oaths. If a city attorney is authorized to take an affidavit to a complaint for the purpose of filing an information in the county court, it must be because he is one of the officers referred to in article 467, .authorizing certain officers to take oaths generally; or he must be specially authorized by some law on the subject. We do not find any article of our Penal Code or Code of Criminal Procedure authorizing city attorneys to administer oaths or affidavits generally. Section 6 of the Corporation Court Act (Acts 26th Leg., p. 42) is the only authority we find in this regard. The recitation in this respect is as follows: “That complaints before such court hereby created and established, may be sworn to before the recorder, clerk of said court, or city secretary, or city attorney, or his deputy, each and all of which officers for that purpose shall have power to administer oaths.” From this it will be seen that the authority conferred on them is to administer oaths to complaints before the corporation court. This limited authority, in our opinion, would not confer on them the authority to take oaths to complaints before any other court, or for use before any other court. We therefore hold that the complaint in this case was not sworn to before an officer authorized to administer the oath. The information, therefore, not being predicated upon an affidavit made before an officer authorized by law to take the same, has no proper basis, and the prosecution cannot be maintained thereon. The court below should have quashed the complaint and information.

The judgment is reversed and the prosecution ordered dismissed.

Reversed and dismissed.