Harrison v. State

297 S.W.2d 823 (1957)

Eugene HARRISON, Appellant, v. The STATE of Texas, Appellee.

No. 28717.

Court of Criminal Appeals of Texas.

January 23, 1957.

James E. Faulkner, Coldspring, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

The conviction is for driving while intoxicated; the punishment, thirty days in jail and a fine of $50.

The complaint alleged that the offense was committed on or about the 26th day *824 of August, 1956. The information based upon the complaint, alleged that the offense was committed on or about the 27th day of August, 1956.

Because of the different dates of the commission of the offense as alleged there is a fatal variance between the complaint and information. 23 Tex.Jur. 604, Sec. 13; 1 Branch's Ann.P.C., 2nd Ed., 456, Sec. 455; Lackey v. State, 53 Tex.Cr.R. 459, 110 S.W. 903; Kelly v. State, 81 Tex.Cr. R. 408, 195 S.W. 853; Bayless v. State, 136 Tex.Cr.R. 1, 123 S.W.2d 354; Murphy v. State, 149 Tex.Cr.R. 269, 193 S.W.2d 820; Dixon v. State, 161 Tex.Cr.R. 626, 279 S.W.2d 868.

The judgment is reversed and the cause is remanded.

Opinion approved by the court.