Opinion
No. 4673.
Decided November 14, 1917.
1. — Drunkenness in a Public Place — Information — Jurat.
Where, upon trial of drunkenness in a public place, the complaint and information were sufficient under the statute and the jurat thereto was officially signed, the court correctly overruled a motion to quash.
2. — Same — Charge of Court — Words and Phrases.
Where, upon trial of drunkenness in a public place, the court submitted a proper charge defining the law as applicable to the facts, the omission of the word "fined," in defining the offense, was not fundamental error requiring reversal of this case, in the absence of a complaint to the charge at the proper time.
Appeal from the County Court of Rockwall. Tried below before the Hon. J.W. Reese.
Appeal from a conviction of drunkenness in a public place; penalty, a fine of five dollars.
The opinion states the case.
W.B. Wade, for appellant. — On question of insufficiency of complaint: Neiman v. State, 29 Texas Crim. App., 361; Montgomery v. State, 60 Tex.Crim. Rep., 131 S.W. Rep., 1087.
On question of charge of court: Habel v. State, 13 S.W. Rep., 1001; White v. State, 12 id., 406.
E.B. Hendricks, Assistant Attorney General, for the State.
This case originated in the County Court of Rockwall County, where, on a complaint and information, appellant was charged and on trial before a jury convicted of drunkenness in a public place.
The record is without bills of exception, and the statement of facts discloses the evidence was conflicting, but that of the State, if believed by the jury, was sufficient to sustain the conviction.
There were exceptions filed to the complaint and information, which contain several counts. The first one only was submitted to the jury, and is, therefore, the foundation of the prosecution. It in form and in substance is sufficient. Article 34, C.C.P., prescribes the requisites for a complaint, and after declaring that it shall be reduced to writing and sworn to, provides that the name of the accused shall be given, and that the offense with which he is charged be stated in plain and intelligible words; that it must appear the offense was committed in the county in which it is made, and within a time not barred by the statute of limitation. The complaint in question is in writing, names the accused, J.A. Harper, fixes the date of the offense as the 19th day of May, 1917, naming the county and State, and describes the offense substantially in the terms of the statute, article 204, P.C. It is signed by E.W. Hall, affiant. The jurat is as follows: "Sworn to and subscribed before me this 26th day of June, A.D. 1917. D.T. Bowles, County Attorney, Rockwall County, Texas." The term "public place" is stated in the complaint in the following language; ". . . in a public place, towit: the streets of the City of Rockwall, same not then and there being his own private residence." This, under article 462, C.C.P., and the decisions of this court cited under article 204, Vernon's P.C., p. 109, appears sufficient. Appellant's suggestion that the jurat was not officially signed is not supported by the record as indicated by the quoted portion of the jurat above.
The court in the first paragraph of his charge stated that the statutes provide that if any person who shall get drunk, or be found in a state of intoxication in any public place, shall be deemed guilty of a misdemeanor, and on conviction before a court of competent jurisdiction "he shall be in a sum of not more than $100 for each and every offense." There is an evident clerical omission of the word "fined." In the second paragraph of the charge the jury is told, after submitting to them the facts upon which guilt could be predicated, that their duty would be to fix the punishment at a fine in any sum of not more than $100. No complaint was made of the charge at the time of the trial as provided by the statute, but in the motion in arrest of judgment it is suggested that the omission of the word "fined" is fundamental error requiring a reversal of the case. The penalty is correctly stated in the part of the charge submitting the case to the jury. In the first paragraph of the charge where the omission occurred it was unnecessary, and our judgment is that the error is not fundamental and not reversible.
The judgment of the lower court is affirmed.
Affirmed.