Opinion
No. 20688.
Delivered December 13, 1939.
Aggravated Assault with Deadly Weapon — Complaint and Information — Variance.
In prosecution for aggravated assault with a deadly weapon, where the name appearing as signature on the complaint was different from the name appearing at the beginning of the complaint, and said complaint purported to have been subscribed and sworn to by the person whose name appeared at its beginning, complaint was defective, and there was a fatal variance where the information, based upon said complaint, stated that prosecution was based on the affidavit of the person whose name appeared at the beginning of said complaint.
Appeal from Harrison County Court. Hon. Reagan R. Huffman, Judge.
Appeal from conviction upon an information charging aggravated assault with a deadly weapon; penalty, fine of $25 and confinement in county jail for thirty days.
Reversed, and prosecution ordered dismissed.
The opinion states the case.
Percy Woodard, of Marshall, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Appellant was convicted in the County Court of Harrison County upon an information charging aggravated assault with a deadly weapon, and his punishment was assessed at a fine of $25.00 and confinement in the county jail for thirty days.
Not only is the prosecution based upon a defective complaint, but there is a fatal variance between the complaint and the information in this, to-wit: The complaint begins, "I, H. H. Whatley, do solemnly swear, etc.," and is signed by George Clark. It then proceeds: "Sworn and subscribed before me by H. H. Whatley, a credible person, on this the 27th day of March, 1939. J. B. Henderson, Jr., Assistant County Attorney, Harrison County, Texas."
The information following the complaint states that the prosecution is based on the affidavit of H. H. Whatley. Under Article 415, C. C. P., 1925, this was a fatal variance. See Adams v. State, 81 S.W. 963.
Because of the defect in the complaint, as well as the variance between the complaint and the information, the cause is reversed and the prosecution ordered dismissed.