Story v. State

301 S.W.2d 106, 164 Tex. Crim. 540, 1957 Tex. Crim. App. LEXIS 2179

• Court: Court of Criminal Appeals of Texas
• Decided: April 17, 1957
• Docket: No. 28,965
• Status: Published

Opinion

DICE, Judge.

Upon a plea of guilty before the court without a jury, appellant was convicted of the offense of operating a motor vehicle upon a public highway while under the influence of intoxicating liquor and his punishment assessed at confinement in jail for 5 days and a fine of $100.

Appellant’s sole contention is that there is a fatal variance between the complaint and information as to the date the offense is alleged to have been committed and that the information is fatally defective because it alleges an impossible date and one barred by limitation.

A photostatic copy of the original complaint and information is in the record before us in the statement of facts of the evidence adduced upon the hearing of appellant’s motion for new trial and in arrest of judgment.

The complaint alleges that the offense was committed “on or about the 11th day of November, A.D., 1956.” The date shown in the information is “on or about the 11th day of November, A.D. 195...”

While the numeral “6” appears below the line on which the date is written in the information, the date is easily ascertainable from an observation of the instrument and clearly shows that the year written is that of “1956” and which corresponds with the year and date alleged in the complaint.

Appellant’s contention is overruled.

The judgment is affirmed.

Opinion approved by the Court.