Opinion
No. 20274.
Delivered April 5, 1939.
1. — Intoxicating Liquor (Sale in Dry Area) — Evidence — Complaint and Information.
In prosecution for selling whisky in a dry area, reversal of conviction was required where there was no proof in the record to support the averments in complaint and information that the county involved was a dry area.
2. — Intoxicating Liquor (Sale in Dry Area) — Affidavits that County Was Dry Area.
In prosecution for selling whisky in a dry area, where there was no proof in the record that the county involved was a dry area, reviewing court was not authorized to consider the affidavits filed in that court to the effect that county was a dry area.
3. — Intoxicating Liquor (Sale in Dry Area — Complaint — Amendment.
In prosecution for selling whisky in a dry area, amendment of the complaint by the county attorney by interlining certain phases with permission of the court, held to invalidate the complaint.
Appeal from County Court of McCulloch County. Hon. Howell E. Cobb, Judge.
Appeal from conviction for selling whisky in a dry area; penalty, fine of $100.00.
Judgment reversed and prosecution ordered dismissed.
The opinion states the case.
Aubrey Davee, of Brady, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The offense is selling whisky in a dry area the punishment, a fine of $100.00.
There is no proof in the record in support of the averments in the complaint and information that McCulloch County is a dry area. The conviction cannot stand with the record in such condition. Cunningham v. State, 102 S.W.2d 413. We are not authorized to consider the affidavits filed in this court to the effect that McCulloch County is a dry area.
With permission of the court the county attorney amended the complaint by interlining certain phrases. Such action invalidated the complaint. We quote from Patillo v. State, 3 Tex. App. 442[ 3 Tex. Crim. 442], as follows: "Clearly the court had no right to amend, or permit any one else to amend, the affidavit. Affiant himself could not have done so without being sworn anew as to the amended statement. Whenever the court permitted the county attorney to amend the affidavit, it ceased to be the act of affiant; * * * "
The judgment is reversed and the prosecution ordered 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.