Carver v. State

235 S.W. 211, 90 Tex. Crim. 342, 1921 Tex. Crim. App. LEXIS 138

• Court: Court of Criminal Appeals of Texas
• Decided: November 30, 1921
• Docket: No. 6386.
• Status: Published

Opinion

MORROW, Presiding Judge.

Conviction is for aggravated assault ; punishment fixed at a fine of $500.

The complaint alleges the date of the offense at an impossible date, namely, the 20th of December, 19120.

The information states the date of the term of court as January, 19120 and the date of the offense December 20, 1920.

Touching errors of this character, this court, at an early date, said:

“It is better that the judgment should be reversed than to establish such a precedent or encourage carelessness in the preparation of so important a part of the record to be brought to this court as the indictment.”

The necessity that the date o'f the offense charge 1 in the complaint and information must correspond has been frequently declared. Hoerr v. State, 4 Texas Crim. App., 75; Lackey v. State, 53 Texas Crim. Rep., 459; Winn v. State, 87 Texas Crim. Rep., 485, 223 S. W. Rep., 230.

Where the date of the offense is laid at an impossible date, or where there is a variance between the allegation of the date of the offense in the complaint and information, this court has. uniformly refused to sanction the conviction. Donaldson v. State, 15 Texas Crim. Rep., 30; Clement v. State, 22 Texas Crim. Rep., 25; Harwell v. State, 65 S. W. Rep., 521; Collins v. State, 5 Texas Crim. App., 37; and citations thereof in 4 Rose’s Notes on Texas Rep. (2 ed.), p. 1215.

Because of the impossible date and variance referred to, the judgment is ordered reversed and the prosecution dismissed.

Reversed and dismissed.