Givens v. State

235 S.W.2d 899 (1951)

GIVENS v. STATE.

No. 25107.

Court of Criminal Appeals of Texas.

January 24, 1951.

Richard F. Stovall, of Floydada, for appellant.

*900 George P. Blackburn, State's Atty., of Austin, for the State.

DAVIDSON, Commissioner.

This is a conviction for the unlawful sale of whisky in a dry area, with punishment assessed at sixty days in jail and a fine of $300.

The complaint, as originally filed and upon which the information in this case was presented, alleged the name of the accused to be "Jack Ross." The information followed that allegation.

The county attorney, over the objection of appellant, was by the trial court permitted to change the name of the accused in the complaint to "Jack Ross Givens."

The rule is well settled that the name of the defendant as stated in the complaint may not be changed by amendment, nor may it be added by amendment if omitted. 12 Tex.Jur., Criminal Law, Sec. 252, p. 576; Wilson v. State, 6 Tex. App. 154; Lazenberry v. State, 50 Tex. Cr.R. 357, 97 S.W. 87; Patillo v. State, 3 Tex.App. 442.

The rule is based upon the proposition that a complaint or affidavit which is materially amended or changed is no longer the affidavit of the affiant thereto and, therefore, is not the sworn accusation of anyone.

For the reasons stated, the judgment is reversed and the prosecution is ordered dismissed.

Opinion approved by the court.