Opinion
No. 12962.
Delivered October 23, 1929.
Bawdy House — Complaint.
In prosecution for keeping a house for the purpose of public prostitution, the complaint alleging only that affiant "has good reason to believe," etc., and does not contain the further allegation "and does believe" is fatally defective, since the statute requires that the complaint contain the allegation which was omitted.
By some oversight, this case has not been heretofore reported though it was finally disposed of by the Court of Criminal Appeals October 23, 1929. As soon as the omission was observed by the present reporter, a search was instituted for the record with the view of prepairing it for publication, which is now done.
Reporter.
Appeal from the County Court of Walker County. Tried below before the Hon. P. H. Singletary, Judge.
Appeal from a conviction for keeping a house for the purpose of public prostitution; penalty, assessment of a fine of $200 and twenty days in jail.
Reversed and remanded.
The opinion states the case.
E. R. Swanger, James J. Thompson, and J. G. Davis, Jr., all of Huntsville, for appellant.
A. A. Dawson, State's Attorney, of Austin, for the State.
Appellant was charged by complaint and information with the offense of unlawfully keeping a house for the purpose of public prostitution. The penalty assessed against her was a fine of $200 and twenty days in jail.
The only question properly presented for review is the legal sufficiency of the complaint to charge an offense. This instrument recites that affiant had good reason to believe, etc., but omits the phrase "and does believe". The inclusion of this last named allegation is statutory. Article 222, subdivision 2, C. C. P. (1925). Its omission from a complaint is fatally defective, as has been held in numbers of cases. Smith v. State, 45 Tex.Crim. Rep., 76 S.W. 436; Tompkins v. State (Texas Crim. App.), 77 S.W. 800; Green v. State, 62 Tex.Crim. Rep., 136 S.W. 467; Smith v. State, 103 Tex.Crim. Rep., 280 S.W. 581.
The judgment is reversed and the prosecution ordered dismissed.
Reversed and dismissed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.