
    Mrs. A. C. Reynolds v. The State.
    No. 4611.
    Decided November 28, 1917.
    Keeping Disorderly House—Information—Complaint—Variance.
    Where there is a clear variance between the complaint and the information, the judgment must be reversed and the cause remanded.
    Appeal from the County Court of Wichita. Tried below before the Hon. Harvey Harris.
    Appeal from a conviction of keeping a disorderly house; penalty, a fine of two hundred dollars and twenty days confinement in the county jail. x
    The opinion states the case.
    
      W. Lindsay Bibb, for appellant.
    On question of variance: Smith v. State, 58 Texas Crim. Rep., 126, 124 S. W. Rep., 665.
    
      E. B. Hendricks, Assistant Attorney General, for the State.
   DAVIDSON, Presiding Judge.

Appellant was charged in two counts with keeping a disorderly house—the evidence indicates that, if anything, it was an assignation house. The complaint charges that she kept this house and permitted it to be used by men for the purpose of meeting by mutual appointment made by another for the purpose of sexual intercourse. The information charges that it was done for the purpose of men and women meeting for such intercourse. This count in the information was attacked; the court overruled. There is a clear variance between the complaint and information. The Legislature has as yet not denounced a punishment for men to meet at assignation houses for such immoral purpose. It has confined its enactment to the meeting of men and women for such purpose. The complaint charges no violation of the law, while the information charges one that could be. Without a valid complaint the information is worthless. The information is a prerequisite to a prosecution in the County Court for this offense. This count will be quashed as it should have been in the lower court. This count was' submitted along with the other count. The evidence rather tends to support the meeting of men and women at the house by mutual appointment. The verdict was general. The judgment will be reversed and remanded.

[This case reached Beporter December, 1917.]

Reversed and remanded.  