Summary
In Murphy v. State, 149 Tex.Cr.R. 269, 193 S.W.2d 820, 821, we had, as in the case at bar, a variance between the day charged in the complaint and in the information, and held such variance to be fatal to the validity of the information.
Summary of this case from Arcidez v. StateOpinion
No. 23327.
Delivered April 10, 1946.
1. — Complaint and Information — Variance.
A variance between complaint and information as to date when offense was committed is fatal to validity of information.
2. — Same.
Where complaint alleged that offense was committed on or about August 8th and information based upon complaint alleged that offense was committed on or about August 10th, there was a fatal variance between complaint and information.
Appeal from San Augustine County Court. Hon. R. N. Stripling, Judge.
Appeal from conviction for unlawfully carrying a pistol; penalty, fine of $100.00.
Reversed and remanded.
The opinion states the case.
Ramsey Ramsey, of San Augustine, for appellant.
Ernest S. Goens, State's Attorney, of Austin, for the State.
This is a conviction for unlawfully carrying a pistol; the punishment, a fine of $100.00.
The complaint alleged that the offense was committed on or about the 8th day of August, 1942. The information, based upon the complaint, alleged that the offense was committed on or about the 10th day of August, 1942.
A variance between the complaint and the information as to the date when the offense was committed is fatal to the validity of the information. Branch's P. C., Sec. 453; Bayless v. State, 123 S.W.2d 354, 136 Tex.Crim. R..
Appellant's attack upon the information, because of the variance mentioned, should have been sustained.
The judgment of conviction is reversed and the cause remanded.
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.