Keenan v. State , 120 Tex. Crim. 616 ( 1932 )

By proper motion in the court below appellant challenged the sufficiency of the complaint upon which the information was based. The judgment having been reversed for other reasons the point mentioned was not considered. Appellant in his motion for rehearing asks that we dispose of the question, insisting that if the complaint is bad the case should be ordered dismissed.

Our statute (article 222, C. C. P.), provides that a complaint will be sufficient, without regard to form, if it shows that "accused has committed some offense against the laws of the state, either directly or that the affiant has goodreason to believe, and does believe, that the accused has committed such offense."

It is appellant's contention that the complaint in the present case does not substantially comply with the provisions of the statute quoted. It recites:

"Before me, the undersigned authority, personally appeared R. Y. Anderson, who, after being by me, duly sworn on oath deposes and says that; according to his information and belief, * * *" appellant committed the crime of theft, setting out by proper averments the elements of that offense. It is appellant's position that the complaint is defective because it does not contain the statutory phrase "and does believe." If appellant is right in his assumption that the complaint does not contain substantially the statutory language last quoted, the complaint would be fatally defective. See Smith v. State, 103 Tex. Crim. 228,280 S.W. 581; Ward v. State (Texas Crim. App.),21 S.W.2d 297, and cases therein cited. However, giving effect to that part of the statute which requires no particular form for a complaint, we are inclined to the view that the recitals in the beginning of the complaint are equivalent to the statement that from the information which affiant had received he "does believe" accused to be guilty of the offense of theft, and so charges under oath. Our conclusion is supported by Brown v. State, 11 Texas App., 451; Burnett v. State, 88 Tex. Crim. 598; 228 S.W. 239. In Smith v. State, 45 Tex. Crim. 411,76 S.W. 436, the necessity of substantial compliance with the provisions of the statute (article 222, C. C. P.), is recognized, and the holding in Brown's case (supra) is apparently approved with the statement that the latter case carried the doctrine as far as the statute would permit. Our holding here is thought to be within the recognized rule.

We do not approve of, and can see no good reason for departing from the language of the statute and approved forms in such matters. To do so usually causes questions like that now before us to arise.

The motion for rehearing is overruled.

Reversed and remanded, but not dismissed.