Montgomery v. State

134 S.W.2d 287, 138 Tex. Crim. 82, 1939 Tex. Crim. App. LEXIS 577

Opinion

BEAUCHAMP, Judge.

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.