Opinion
No. 4070.
Decided June 2, 1909.
Aggravated Assault — Information — Complaint — Variance.
Where in a prosecution for aggravated assault, the information in describing the offense used the name of Ed Moody and the complaint that of John Moody, there was a fatal variance.
Appeal from the County Court of Wichita. Tried below before the Hon. M.F. Yeager.
Appeal from a conviction of aggravated assault; penalty, a fine of $50.
The opinion states the case.
Montgomery Britain, for appellant. — On question of insufficiency of information: Robinson v. State, 25 Texas Crim. App., 111.
F.J. McCord, Assistant Attorney-General, for the State.
Appellant was convicted of an aggravated assault and his punishment assessed at a fine of $50.
The information in this case charges appellant with making an aggravated assault upon W.J. Sheldon, who was then and there incompetent from physical defects produced by the loss of the right hand, to such an extent as to render the said W.J. Sheldon comparatively helpless in a personal conflict with the said Ed Moody. The complaint says to such an extent as to render the said W.J. Sheldon comparatively helpless in a personal conflict with the said John Moody. This makes a fatal variance between the complaint and the information.
The judgment is accordingly reversed and the prosecution ordered dismissed.
Reversed and dismissed.