
    WARNER v. STATE.
    (No. 3130.)
    (Court of Criminal Appeals of Texas.
    May 20, 1914.
    On Motion for Rehearing, June 3, 1914.)
    1. Bail (§ 65) — Recognizance on Appeal— Requisites and Sufficiency.
    An appeal from a conviction for simple assault will be dismissed, where the recognizance fails to recite the punishment assessed.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. § 285; Dec. Dig. § 65.]
    On Motion for Rehearing.
    2. Cbiminal Law (§ 770) — Instbuctions— Issues and Theobies of Case.
    On a trial for assault, where the evidence tended to show that accused and another took a boy against his will, opened his pants, and placed lard on his privates-, and that he was much mortified, while it was accused’s theory that the assaulted party and other boys were playing and scuffling, that the others had the assaulted party down, his breeches unbuttoned, and his private parts exposed, and that what he did was done in fun at the suggestion of one of the boys, without intent to injure the boy, and that it was not offensive to the boy, and the court submitted the state’s theory, it was error to refuse instructions submitting accused’s theory.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1806; Dec. Dig. § 770.]
    3. Indictment and Infobmation (§ 87)— Sufficiency of Accusation — Time of Offense.
    A complaint and information sworn to on July 1, 1913, charging the commission of an offense on July 29, 1913, was fatally defective.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 24<b-255; Dec. Dig. § 87.]
    Appeal from Angelina County Court; E. B. Robb, Judge.
    Doc Warner was convicted of simple assault, and he appeals.
    Reversed, and prosecution dismissed on rehearing.
    W. J. Townsend, Jr., and Mantooth & Collins, all of Lufkin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, J.

This conviction was for simple assault. The recognizance fails to recite the punishment assessed against appellant. Upon this ground the Assistant Attorney General moves to dismiss the appeal. Under the legislative prescribed form it is necessary to state the amount of the punishment in order to make a recognizance sufficient. The authorities are quite numerous, but unnecessary here to mention, which sustain the motion to dismiss.

Because the recognizance is insufficient in the respect mentioned, the appeal will be dismissed.

On Motion for Rehearing.

On a previous day of the term the appeal herein was dismissed for want of a sufficient recognizance. This defect has been supplied as authorized by the statute and therefore the case is reinstated and will be tried on the issues presented by the record.

The evidence for the state discloses there were several boys standing at the door of the Pine Lumber Company place of business when appellant and another party took the alleged assaulted party, a boy, back in the house and, against his will, opened his pants and placed lard on his privates. The boy says it was done without his consent, and that he was very much mortified. The defendant’s theory of it was that these boys at the front of the building were playing and scuffling, and one of them was the alleged assaulted party; that the other boys had him down, his breeches unbuttoned, and private parts exposed, and some of them jocularly remarked or requested him to grease it; that there was a barrel of lard close by; that he dipped his finger in it and put a little lard on it; that it was done in fun; that they were all playing; and that it was done in play, and was not offensive to the alleged assaulted party in any way, and that he had no purpose or intent to injure the boy. These are the two theories. The court submitted the state’s theory, but declined to submit the defendant’s theory, although presented in several ways by requested charges. These matters are mentioned in a general way so that, should they occur upon another trial, the defendant’s theory of the case may be presented by the charges. It is not necessary here to discuss them. These charges are contained in the record, and the trial court will have them before him in the original papers on file in the county court. The charge requested was applicable to defendant's theory of the case, and presents it legally and correctly, and should have been given.

The case, however, must be reversed and dismissed upon the insufficiency of the complaint and information. The complaint and information charge that on or about the 29th of July, 1913, this offense was committed. It was sworn to before the county attorney on the 1st day of July, 1913. The affidavit was taken on the 1st of the month, and the complaint alleges that the offense was not committed until 29 days after the complaint was taken. The information charges that the offense was committed on or about the 29th day of July, 1913.. Our statute requires that the offense must be committed anterior to the presentment of the information, complaint, indictment, or whatever the pleading may be that charges the offense. Here the affidavit was ‘taken 29 days before the offense was committed, and the information charges, also, that it was committed on the 29th day of July. This would be an impossible date.

The information will be held invalid, and the judgment reversed, and the prosecution ordered dismissed.  