Opinion
No. 18354.
Delivered May 20, 1936.
Lottery — Complaint.
Conviction for maintaining a lottery reversed and prosecution ordered dismissed where the record contained no complaint.
Appeal from the County Court at Law No. 2, Harris County. Tried below before the Hon. Frank Williford, Jr., Judge.
Appeal from conviction for maintaining a lottery; penalty, fine of $100.00.
Reversed and prosecution ordered dismissed.
The opinion states the case.
Lockett Foreman, of Houston, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Conviction for maintaining a lottery; punishment, a fine of $100.00.
We find in this record no complaint. Under the practice in this State and the law thereof an information must be founded upon a complaint. In this condition of the record this court is without jurisdiction.
It is easily possible that the failure to file a complaint resulted from oversight. If a complaint and information should be filed in this case and prosecution had hereafter, we call attention to the fact that there is nothing in this record to support the averment of the establishment of a lottery by this appellant. Somebody put a slot machine in the place of business known as the Tree Tavern. There is no testimony showing that either the slot machine or place of business belonged to this appellant, or that anybody ever saw appellant engaged in the operation of said place of business or machine. Such facts would not support a conviction.
Because of the absence of a complaint the judgment is reversed and the prosecution is ordered dismissed.
Reversed and prosecution ordered dismissed.