Opinion
No. 638.
Decided January 30, 1895.
1. Complaint and Information — Amendment of — Practice. — Article 550, Code of Criminal Procedure, provides, that "any matter in an indictment or information may be amended before announcement for trial by the parties, but not afterwards." Held, that this article was violated when, after issue joined before the jury and the State's evidence adduced, the court permitted the information to be amended so as to conform to the complaint as to the allegation of time, there being a variance between the date alleged in the complaint and information.
2. Same — Practice on Appeal. — Where, on appeal, there appears a fatal variance between the complaint and information, if the complaint furnishes a proper basis for another information, the judgment will be reversed and cause remanded.
APPEAL from the County Court of Hill. Tried below before Hon. W.P. CUNNINGHAM, County Judge.
This appeal is from a conviction for unlawfully carrying a pistol, the punishment assessed being a fine of $25.
No statement necessary.
Moorman Rowe, for appellant, cited Code Crim. Proc., arts. 430, 550; Hoerr v. The State, 4 Texas Crim. App., 75; Drummond v. The State, 4 Texas Crim. App., 150; Collins v. The State, 5 Texas Crim. App., 37; Williamson v. The State, 5 Texas Crim. App., 485; Hawthorne v. The State, 6 Texas Crim. App., 562; Lanham v. The State, 9 Texas Crim. App., 232; Robbins v. The State, 9 Texas Crim. App., 666; Goddard v. The State, 14 Texas Crim. App. 566; Lee v. The State; 22 Texas Crim. App., 547; Kennedy v. The State, 22 Texas Crim. App., 693.
Mann Trice, Assistant Attorney-General, for the State.
The jury having been impaneled, issues joined, and the State's evidence adduced, the county attorney discovered a variance between the complaint and the information in regard to the date of the alleged offense. The complaint alleged the date to be April 28, 1894, the information the 30th day of May, 1894. Upon motion of the county attorney, resisted by appellant, the court permitted the information to be so amended as to conform to the time alleged in the complaint, and the trial proceeded to appellant's conviction. This was directly in violation of article 550 of the Code of Criminal Procedure, which provides, that "any matter in an indictment or information may be amended at any time before an announcement of ready for trial upon the merits by both parties, but not afterward. No matter of substance can be amended." The amendment was as to "matter of form," but it came too late, after announcement of ready for trial by both parties. For authorities collated, see Willson's Criminal Procedure, section 2154. Inasmuch as the complaint furnishes the basis of a proper information, the judgment will be reversed and cause remanded.
Reversed and remanded.
Judges all present and concurring.