Opinion
No. 9884.
Delivered February 17, 1926.
Carrying a Pistol — Arrest of Judgment — Improperly Overruled.
Where a motion in arrest of judgment that the complaint in the cause was insufficient, in that the complaint recites that affiant "has good reasons to believe," that appellant committed the offense charged but omitted the further allegation required by the Statute "and does believe" it was error to overrule such motion. See Sub. 2 Art. 222 C. C. P. 1925. Following Smith v. State, 45 Tex.Crim. Rep., and other cases cited.
Appeal from the County Court of San Augustine County. Tried below before the Hon. W. C. Gary, Judge.
Appeal from a conviction for carrying a pistol, penalty a fine of $100.00.
J. R. Bogard of San Augustine, for appellant.
Sam D. Stinson, State's Attorney, and Nat Gentry, Jr., Assistant State's Attorney, for the State.
Appeal is from a conviction for unlawfully carrying a pistol, the punishment being a fine of $100.00.
Prosecution was by complaint and information. The complaint recites that affiant has "good reason to believe" that appellant committed the offense charged, but omitted the further allegation required by the Statute, "and does believe," (Sub. 2, Art. 222, C. C. P. 1925 Revision.) This defect was pointed out by motion in arrest of judgment which was overruled. It should have been sustained. Smith v. State, 45 Tex. Crim. 411, 76 S.W. 436; Tompkins v. State, 77 S.W. 800; Green v. State, 62 Tex.Crim. Rep., 136 S.W. 467; Exparte Ross, 97 Tex.Crim. Rep., 261 S.W. 1042.
The judgment is reversed and the prosecution ordered dismissed.
Reversed and dismissed.