Opinion
No. 17591.
Delivered May 22, 1935.
Aggravated Assault and Battery — Variance.
Where, in prosecution for aggravated assault and battery and simple assault, complaint and information charged an assault upon injured party, "Emmet W. Bickford," and the statement of facts showed that the assaulted party was "Emmet W. Beckwith," and no effort was made to show that injured party was also known as "Bickford," convictions would be reversed because of fatal variance between allegations and proof.
Appeal from the County Court at Law No. 2, Harris County. Tried below before the Hon. Ray Scruggs, Judge.
Walter Stovall and another were convicted of aggravated assault and battery and Lewis Taylor and others were convicted of simple assault, and they appeal.
Reversed and remanded.
The opinion states the case.
F.E. Mann, of Houston, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
By complaint and information the five above named parties and L.O. Gilbert, Carl Mitchell and Tom Richardson were jointly charged with aggravated assault and battery upon Emmet W. Bickford. The State dismissed the case as to Gilbert, Mitchell and Richardson, and upon a joint trial before a jury Stovall and Laird were found guilty of aggravated assault and battery, Stovall's punishment being assessed at a fine of $100.00, Laird's punishment assessed at a fine of $50.00, Taylor, Britton and Span were found guilty of simple assault and their punishment assessed at a fine of $5.00 each.
The record reveals a rather singular situation. In the complaint and information the injured party's name occurs fourteen times, and in every instance it is stated as Emmet W. Bickford. The statement of facts shows that when the injured party was placed upon the witness stand during the trial he gave his name as Emmet W. Beckwith. He is referred to by name one hundred thirty-four times in the statement of facts, and every time as Beckwith. No effort was made to show that he was also known as Bickford. If any point of variance was ever raised the record fails to show it. The only similarity in the names appears to be that they both begin with the same letter of the alphabet. The variance is so marked that we cannot fail to take note of it. The State charged the assault to have been made upon Bickford, and has wholly failed to prove it. The case as averred is not made out.
The judgment must be reversed and the cause remanded, and it is so ordered.
Reversed and remanded.
MORROW, P.J., absent.