
    REYNOLDS v. STATE.
    (No. 9883.)
    (Court of Criminal Appeals of Texas.
    Feb. 17, 1926.)
    Obstructing justice &wkey;>l2 — Proof of resisting arrest after using disturbing language in street held insufficient to convict for resisting arrest after using such language in café (Pen. Code 1925, arts. 474 and 475).
    Where indictment for resisting arrest stated that accused was arrested without warrant when, in presence 'of officer, he used disturbing language in public place, “to wit, the White House Café,” although under Pen. Code, arts. 474 and 475, it could have been averred that language was used in public street, proof that language was used in street separated from café named by two buildings held insufficient to convict; there being variance between indictment and proof.
    Appeal from Somervell County Court; J, I-I. Adams, Judge.
    Walter Reynolds, alias Bill Reynolds, was convicted of resisting arrest, and he appeals.
    Reversed and remanded.
    Troy Deason, of Glen Rose, for appellant.
    Sam D'. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   HAWKINS, J.

Appeal is from a conviction for resisting arrest, the punishment being by fine of $25.

It is alleged in the indictment that the arrest was without warrant, but authorized, nevertheless, because appellant in the presence and hearing of the officer went “into and near a certain public place, to wit, the White House Café, * * * and did then and there use loud, profane and vociferous language in a manner calculated to disturb the inhabitants of said public place.” The evidence shows that the language used, the arrest, and resistance occurred in a street or passway separated from the café named by two intervening buildings. The owner of the café testified to the public character of his place of business, but gave no evidence that the language attributed to appellant was heard by him or any one else in the café. There is no testimony suggesting that appellant on the occasion under investigation was in the café or nearer to it than the point in the street where the disturbance and arrest occurred. Under articles 474 and 475, Penal Code (1925 Revision), the pleader might have averred that the disturbing language was used in the public street, but having chosen to allege that it occurred in or near .the café, the state is bound to meet It with corresponding proof. The failure to do this was called to the trial court’s attention by exception to the evidence because of the variance mentioned.

The judgment must be reversed because of the state’s failure to prove its ease as alleged.

The judgment is reversed, and the cause remanded.  