
    No. 5302.
    N. Baumgartner v. The State.
    Information—Variance.—The affidavit on which the information was based alleged November 16, 1885, to be the date of the efifense, but the information laid said date as the sixth of said November, Held that the variance is fatal to the conviction.
    Appeal from the County Court of Guadalupe. 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.
    
      Burges & DibreU and W. B. Neal, for the appellant.
    
      W. L. Davidson, Assistant Attorney General, for the State.
   White, Presiding Judge.

This 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. The State, 7 Texas Ct. App., 73; Calvert v. The State, 8 Texas Ct. App., 538.)

Opinion delivered May 7, 1887.

Reversed and remanded.  