Osborne v. State

Decided May 23, 1883

Court of Appeals of Texas · decided 1883-05-23

Tried below before the Hon. W. J. Ewing, County Judge. The information charged the appellant with an aggravated assault and battery upon one Granberry Byrd, a male infant. The venue of the offense was alleged to be in Johnson county, and it was charged to have been committed on the twenty-first day of August, 1882. A fine of twenty-five dollars was the punishment assessed by a verdict of guilty.

Decided 1883-05-23

White, Presiding Judge.

¶1One of the grounds of tíie motion for a new trial was that the verdict was contrary to the evidence. Both the complaint and information charged that the alleged assault was committed upon the person of Granberry Byrd. All the witnesses testified that the party they saw assaulted by appellant was one Granville Byrd. The name of the assaulted party must be proven as alleged. (Hardin v. The State, 26 Texas, 113; Goode v. The State, 2 Texas Ct. App., 520; 65 Ind., 460; 6 Ill. App., 537.)

¶2Because there was a fatal variance between the allegation and proof, and the latter does not sustain the former, the judgment .is reversed and the cause remanded.

¶3Reversed and remanded.

¶4Opinion delivered May 23, 1883.