
    HILL v. STATE.
    (No. 9896.)
    (Court of Criminal Appeals of Texas.
    March 24, 1926.)
    1. Names <S=3 — Middle initial is not known in law, and variance between allegation and proof as to such initial is immaterial.
    Middle initial is not known in law, and variance between allegation and proof as to middle initial of owner of house mentioned in indictment is immaterial.
    2. Indictment and information @=3125(20).
    Information, under Pen. Code 1925, art. 1339, was not duplicitous in conjunctively alleging throwing of piece of stone, brick, and plank by accused against another’s storehouse.
    3. Criminal law @=3814(1).
    Submitting offense disjunctively, when information based on Pen. Code 1925, art. 1339, and alleged conjunctively throwing of piece of stone, brick, and plank against another’s storehouse, held not error.
    4. Criminal law @=3805(1) — Requested charge correctly defining “willfully” and “maliciously” with respect to throwing stone, brick, and plank, against storehouse, but submitting all three means of committing offense conjunc-tively, held properly refused (Pen. Code 1925, art. 1339).
    Requested charge, correctly defining “willfully” and “maliciously” with respect to throwing stone, brick, and plank, against occupied storehouse, in violation of Pen. Code 1925, art. .1339, but coupling with it conjunctive submission of all three means of committing offense alleged, held properly refused for that reason.
    5. Criminal law @=3775(1) — Refusal to submit accused’s defense he was not at place from which missile was thrown held reversible error (Pen. Code 1925, art. 1339).
    In a prosecution, under Pen. Oode 1925, art. 1339, for willfully and maliciously throwing a stone, piece of brick, and plank ag¿inst and at occupied storehouse, refusal to submit accused’s only defense that he was not at the place from which such missile was thrown at the time it was thrown held reversible error.
    Appeal from Hopkins County Court; Geo. C. Stephens, Judge.
    • Carl Hill was convicted of willfully and maliciously throwing a stone, a piece of brick, and a piece of plank against and at a storehouse occupied by an individual, and he appeals.
    Reversed and remanded.
    Ramey & Davidson, of Sulphur Springs, for appellant.
    Sam D. Stinson, State’s Atty.^of Austin, and Robt. M.- Lyles, Asst. State’s Atty., of. Groesbeek, for the State.
   HAWKINS, J.

The information alleged that appellant “willfully and maliciously threw a stone, a piece of brick, and a piece of plank against and at a storehouse occupied by O. A. Swindell,” etc. Article Í339, P. C. 1925 Revision. Appellant was convicted and fined- $5.

The evidence disclosed that the house was occupied by C. O. Swindell, and there Was no such person as C. A. Swindell. The point is made that this constituted a variance.

“A middle initial is not known in law and a variance between the allegation ^nd proof as to a middle initial is immaterial. A middle initial may be rejected as surplusage.” Branch’s Ann. Tex. P. O. § 462, and cases thereunder cited.

It is contended that, because the information alleged the throwing of a piece of stone, brick, and plank, it was duplicitous; also that, it being so alleged conjunctively, it was error for the court to submit it disjunctively. Neither contention is meritorious. Section 508, Branch’s Ann. Tex. P. O.

Written exception to the charge was timely presented, because the court omitted to define the terms “willfully” and maliciously.” This being a misdemeanor prosecution, appellant undertook to comply with the other rule requiring, not only an exception to the charge, but also that a correct special charge be presented supplying the omission. The requested charge correctly defined, “will-, fully” and “maliciously,” but unfortunately coupled with it a conjunctive submission .of, all three means of committing the offense alleged in the indictment. For this reason the court correctly refused it, and this point is no further available to accused.

Mr. Swindell testified that he saw appellant and three other parties about 20 feet from his storehouse, and saw appellant and the others throw rocks which struck the top of the house. It appears from other evidence in the case that rocks were thrown and struck the house, on two occasions on the night in question. It was appellant’s contention, and .he so testified, that on both occasions when the rocks struck the house he was inside the storehouse or on the porch. Another witness testified to the same effect. Under these circumstances appellant invoked the doctrine of alibi. He specifically excepted to the charge of the court because it omitted an instruction upon this issue, and requested a correct special charge on the subject. The facts are rather peculiar as raising the defense of alibi. There is no question even from his own testimony that appellant was at the store when the rocks were thrown against it; in that sense he was present when the offense was committed. According to Mr. Swindell, the party or parties were some 20 feet from the store at the time the rocks were thrown. If appellant was in the store or on the gallery at that time, it was impossible for him to have been at the point from which the rocks were thrown or to have thrown them. Further raising the same question, exception was presented to the charge because it did not “affirmatively present the defense that the alleged offense, if any, was committed by another and different person and was not committed by this defendant.” Upon this issue appellant requested the court to charge that, if the evidence raised a rea-sbnable doubt as to whether appellant was the person who threw the rock, the jury should acquit him. This charge was also refused. It was the only defense interposed by appellant. It was appellant’s version of the matter that at the time the rocks were thrown he was either on the gallery or in the storehouse and not at the point -testified to by Mr. Swindell, and we believe this defense should have been pertinently called to the attention of the jury under some appropriate instruction.

For the omission to give such charge, the judgment is reversed, and the cause remanded. 
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