From Casetext: Smarter Legal Research

Stephens v. State

Court of Criminal Appeals of Texas
Nov 6, 1968
433 S.W.2d 428 (Tex. Crim. App. 1968)

Opinion

No. 41543.

November 6, 1968.

Appeal from the 161st Judicial District Court, Ector County, George M. Kelton, J.

Charles H. Winston, Odessa, for appellant.

Jack Q. Tidwell, Dist. Atty., Bruce Bangert, Asst. Dist. Atty., Odessa, and Leon B. Douglas, State's Atty., Austin, for the State.


OPINION


The conviction is for felony theft, and the punishment was assessed at two years.

The first ground urged as error is: 'that the indictment reading '1966 Chevrolet Impala' and the proof showing a 1966 Chevrolet Impala automobile was a fatal variance.'

The allegation describing the property as 'one 1966 Chevrolet Impala' designated an automobile which is commonly known by that name and was sufficiently definite to apprise appellant of the nature of the charge against him; and the proof showing a 1966 Chevrolet Impala automobile was not a fatal variance with the allegations of the indictment. Arts. 21.09 and 21.11, Vernon's Ann.C.C.P. Ground of error No. 1 is overruled.

The second ground of error is that there is a fatal variance in the indictment alleging William Henry Wade as the injured party, and the proof that the injured party was William Harrison Wade.

A mistake in the use of the middle name in alleging the injured party may be disregarded and treated as immaterial. The mistake as to the middle name did not, under the facts, constitute a variance or raise a question of identity. 40 Tex.Jur.2d 374, Sec. 4; 1 Branch 2d 469, Sec. 482; 15 A.L.R.2d 974.

The judgment is affirmed.


Summaries of

Stephens v. State

Court of Criminal Appeals of Texas
Nov 6, 1968
433 S.W.2d 428 (Tex. Crim. App. 1968)
Case details for

Stephens v. State

Case Details

Full title:Aubrey STEPHENS, Appellant, v. The STATE of Texas, Appellee

Court:Court of Criminal Appeals of Texas

Date published: Nov 6, 1968

Citations

433 S.W.2d 428 (Tex. Crim. App. 1968)

Citing Cases

Sallings v. State

The State sufficiently proved that the victim was Jane Doe. No fatal variance existed. See Stephens v. State,…

Harrington v. State

A failure or mistake in proving the middle name of the victim alleged in the indictment may be disregarded…