The opinion
ON REHEARING.
May 10, 1911.
HARPER, Judge.
At a former day of this term of court this case was affirmed, and appellant has filed a motion for a rehearing. All the questions raised in the bills of exception and motion for new trial were passed on in the original opinion. However, we find in the record a motion to quash the information, which was by the court overruled. No bill of exceptions was reserved to the action of the court in overruling it, and such action is not complained of in the
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motion for a new trial. However, it is insisted on, in the motion for a rehearing in this court, and, if the information is defective, of course, the case must be dismissed.
The allegation in the motion to quash the information is based solely on the ground “that the information states that it is based on the affidavit of J. S. McConnell, whereas, the affidavit attached to and made a part of the information is sworn to by Sam Grayson.”
In the record there is copied a complaint which is signed by Sam Grayson, and the information alleges “upon the affidavit of Sam Grayson,” so the record before us discloses that no ground existed upon which to base the motion of appellant. If the name was ever changed in the information, and appellant desired us to review the action of the court in permitting it to be done, the facts should have been reserved in a proper bill of exceptions, that we could, from the record, determine the matter. In the absence of a bill of exceptions there is nothing to review. However, if there had been a mistake in name in the beginning of the information, as alleged by appellant, the information setting out the offense in full the words “upon the affidavit of-,” not being descriptive of the offense, might be treated as surplusage. Warren v. State, 17 Texas Crim. App., 207; Hilliard v. State, 17 Texas Crim. App., 210; Johnson v. State, 17 Texas Crim. App., 231, the court saying: “We take occasion here to remark that it is wholly unnecessary to state in the information that it is founded upon complaint in writing under oath, or to make any mention whatever of the oath. This is not one of the requisites of an information. If the oath is filed with the information, it is all the law requires.” See articles 466 and 467, Code of Criminal Procedure; Steinberger v. State, 35 Texas Crim. Rep., 492 .
As all the other grounds in the motion were passed on in the original opinion, and the information charged all the requisites of the offense, even though appellant’s contention is correct, and the record before us wrong, the motion for a rehearing is overruled.
Overruled.