Opinion
No. 32097.
June 22, 1960. On Motion for Rehearing October 19, 1960.
Appeal from the County Court at Law, Lubbock County, Pat S. Moore, J.
Alton R. Griffin, County Atty., J. Q. Warnick, Jr., Asst. County Atty., Lubbock, Leon B. Douglas, State's Atty., Austin, for the State.
The offense is transportation of whiskey in a dry area; the punishment, a fine of $200.
No statement of facts accompanies the record.
A fatal variance exists between the complaint, which charges that Dwayne Dudley committed the offense, and the information, which charges that Dwayne Dudley Driver committed the same.
Such a variance is fatal to the conviction. 1 Branch's Ann.P.C., 2nd Ed., Section 489, page 474, and cases there cited. See also Riddle v. State, Tex.Cr.App., 25 S.W. 21, which holds that a complaint charging an accused by his first name only is "worthless."
The judgment is reversed and the cause is remanded.
On State's Motion for Rehearing
Supplemental transcript has been forwarded to this Court from which it appears that appellant, who was charged by complaint and information under the name of Dwayne Dudley, suggested to the court that his true name was Dwayne Dudley Driver. Whereupon the court caused the information to be corrected to inserting the true name of the defendant, as suggested by him, and the styel of the cause was changed accordingly.
The proceedings were authorized by Arts. 496 and 503 Vernon's Ann.C.C.P., and the change in the information did not constitute a fatal variance between it and the complaint. 1 Branch's Ann.P.C., 2d Ed., Sec. 486, p. 472, and cases there cited.
The State's motion for rehearing is granted, the order of reversal set aside and the judgment is now affirmed.