
    Margaret Jones, alias Maggie Jones, v. The State.
    No. 1269.
    Decided June 21, 1911.
    Murder—Manslaughter—Name of Injured Party—Variance.
    Where the indictment charged the defendant with killing Tom Jones, and the evidence showed that the name of the deceased was Jim Jones, and there was nothing in the record that the deceased was known as well by one name as the other, the variance is fatal.
    Appeal from the District Court of Freestone. Tried below before the Hon. H. B. Daviss.
    Appeal from a conviction of manslaughter; penalty, two years imprisonment in the penitentiary.
    The opinion states the case.
    
      R. L. Williford and Bell & Fryer, for appellant.
    On question of variance: Milantree v. State, 30 Texas Crim. App., 151, 16 S. W. Rep., 764; Spencer v. State, 52 Texas Crim. Rep., 289, 106 S. W. Rep., 386; Tucker v. State, 59 Texas Crim. Rep., 291, 128 S. W. Rep., 617; Malloy v. State, 58 Texas Crim. Rep., 425, 126 S. W. Rep., 598; Johnson v. State, 58 Texas Crim. Rep., 442; id., 597; Williams v. State, 49 Texas Crim. Rep., 105, 90 S. W. Rep., 876; Roberts v. State, 2 Texas Crim. App., 4; Osborne v. State, 14 Texas Crim. App., 225; Clements v. State, 21 Texas Crim. App., 258; Gorman v. State, 42 Texas, 221; Hankins v. State, 57 Texas Crim. Rep., 152, 122 S. W. Rep., 21; Perry v. State, 4 Texas Crim. App., 566.
    
      C. E. Lane, Assistant Attorney-General, for the State.
   DAVIDSON, Presiding Judge.

Appellant was convicted of manslaughter, her punishment being assessed at two years confinement in the penitentiary.

The indictment charges appellant with killing Tom Jones. The evidence shows the name of the deceased was Jim J ones. There is nothing in the record to show that the deceased was known as wejl by the name of Jim Jones as Tom Jones, but all the way through the record shows the deceased’s name was Jim Jones, and not Tom J ones. This may be a mistake in the record. However that may be, the indictment alleges the killing of one man, and the evidence shows the killing of another. This is such a variance as requires a reversal of the judgment. The court submitted to the jury the case upon the theory that Tom Jones was killed. The record fails to show that there was such a man as Tom Jones.

The judgment is reversed and the cause is remanded.

Reversed and remanded.  