Baumgartner v. State

Decided May 7, 1887

Court of Appeals of Texas · decided 1887-05-07

Tried below before the Hon. J. F. McKee, County Judge. The offense charged against appellant was an aggravated assault on John J. Reither by cutting him with a knife, the same being a deadly weapon, etc. The jury convicted the appellant, and assessed against him a fine of twenty-five dollars.

Decided 1887-05-07

White, Presiding Judge.

¶1This was a prosecution in the lower court by an information based upon a complaint for an aggravated assault. In the complaint the date of the commission of the offense is stated to be the sixteenth day of November, 1885, whilst in the information the date is alleged to be the sixth day of November, 1885, ten days earlier than it is charged to have been committed by the complaint. This is a fatal variance, for which the judgment will have to reversed. (Hoerr v. The State, 4 Texas Ct. App., 75; Williams v. The State, 5 Texas Ct. App., 485; Hawthorne v. The State, 6 Texas Ct. App., 562; Swink v. *336The State, 7 Texas Ct. App., 73; Calvert v. The State, 8 Texas Ct. App., 538.)

Opinion delivered May 7, 1887.

¶2Reversed and remanded.