7 S.W. 244
JEFFERSON 
v. 
STATE.
Court of Appeals of Texas.
January 21, 1888.
        Appeal from Freestone county; T. W. SIMS, Judge.
        On information for theft. The defendant, Alexander Jefferson, was convicted, and fined $100, and 
appeals from the judgment.
        Kirven, Gardner & Etheredge, for appellant. Asst. Atty. Gen. Davidson, for the State.
Page 245
        WHITE, P. J.
        This prosecution in the court below was upon an information for a misdemeanor, which information 
was based upon an affidavit or complaint. A motion in arrest of judgment attacked the sufficiency of the 
complaint, because the same did not commence with the words, "In the name and by the authority of the 
state of Texas." It is contended that, inasmuch as it is both statutory and constitutional that "all 
prosecutions shall be carried on in the name and by the authority of the state of Texas," (Const. art. 5, § 
12; Code Crim. Proc. art. 19,) and inasmuch as the complaint is the initial step in the prosecution, and the 
very basis and foundation upon which the information rests, therefore it is essential to its validity that it 
should be commenced "in the name and by the authority of the state of Texas." Our statute prescribing 
the requisites of a complaint does not require the use of these words, (Code Crim. Proc. art. 236,) as is 
done with regard to the requisites for indictments and informations, (Id. arts. 420, 430.) There can be no 
question but that the words are indispensable to indictments and informations. Saine v. State, 14 Tex. 
App. 144. But a complaint is not required to set forth the offense with the same particularity as is an 
indictment or information, (Arrington v. State, 13 Tex. App. 551;) and in the case of Bell v. State, 18 Tex. 
App. 53, an affidavit or complaint which did not contain these words was held sufficient. It is true the 
words are used in the form No. 545, p. 236, Willson, Crim. Forms, and without doubt it would be better to 
use them in the complaint, as well as in the information. Lane v. State, 16 Tex. App. 172. A similar 
provision to the one quoted above from our present constitution will be found in the constitution of the 
republic of Texas, art. 4, § 4, (Pasch. Dig. 33.) Construing that provision with reference to an indictment 
for gaming, Justice WHEELER, in the early case of Drummond v. Republic, 2 Tex. 156, says: "No 
prescribed form of words is necessary in order that the prosecution be `carried on in the name and by the 
authority of the republic of Texas.' It is enough that the prosecution is conducted by the proper law 
officer, acting under the authority and conducting the prosecution in the name of the government." As we 
have seen, our statutes now require that informations and indictments shall contain the words, "In the 
name and by the authority of the state of Texas." This is made, in fact, the first requisite to those 
instruments. Code Crim. Proc. arts. 420, 430, subd. 1. In this case the prosecution was conducted under 
an information containing those words. We hold that the motion in arrest of judgment was properly 
overruled.
        There is a fundamental error apparent of record for which the judgment must be reversed. It is 
nowhere made to appear that the defendant pleaded to the charge in the information, nor that a plea to 
the same was entered for him. Without a plea there was no issue to try. McFarland v. State, 18 Tex. App. 
313; Roe v. State, 19 Tex. App. 89. The judgment is reversed, and the cause is remanded.