
    STEPHENS v. STATE.
    (No. 6434.)
    (Court of Criminal Appeals of Texas.
    Nov. 9, 1921.)
    1. Indictment and information <&wkey;!38 — Objection to sufficiency of information should be given effect of motion to quash.
    An objection to the sufficiency of an information because of a variance between the date of the offense as alleged in the complaint and as set out in the information should be given the effect of a motion to quash the information.
    2. Indictment and Information <&wkey;l22(4) — Difference in dátes of offense alleged in complaint and in information renders information invalid.
    Where complaint alleged the date of an of-fensé to be February 14, 1921, and the information alleged it to be March 24, 1921, the difference in the dates is fatal to the validity of the information.
    3. Criminal law <&wkey;800(6), 828 — In malicious mischief prosecution word “willfully” should be defined, but written request should be made.
    In prosecution for malicious mischief, the term “willfully” as used in the complaint and information should have been defined in the charge, but, in absence of a written request to give such a definition as required by Vernon’s Ann. Code Cr. Proc. 1916, art. 739, the failure to do so is not reversible error.
    4. Criminal lav/ &wkey;>l033(3) — In misdemeanor cases special charges must be presented to be available on appeal.
    In misdemeanor cases it is not sufficient to except to the charge as given for failing to give some additional desired charge, but a special charge must be presented and asked in order to avail the accused on appeal,
    5. Criminal law <&wkey;828 — In misdemeanor cases a written charge is not necessary unless requested in writing.
    In misdemeanor cases it is not necessary for the trial court to give a written charge, unless requested to do so in writing.
    6. Criminal law <&wkey;76l (3) — Truth of any controverted issue of fact should not be assumed in a charge.
    The trial court should not assume in its charge the truth of any controverted issue of fact, but should submit all such issues to the
    7. Indictment and information <&wkey;4l(5) — Failure to file information at same time as complaint is no objection to it.
    Where an information has been held defective on appeal, the affidavit on file on which it was issued can be made the basis for a new information, since the fact that the information is not filed at the same time as the complaint does not render the information invalid.
    Appeal from Knox County Court; J. M. Morgan, Judge.
    J. A. Stephens was convicted of malicious mischief, and he appeals.
    Reversed and remanded.
    Jas. A. Stephens and D. J. Brookreson, both of Benjamin, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   EATTIMORE, J.

Appellant was convicted of malicious mischief, the charge being that he willfully obstructed a street by erecting a fence across it, and his punishment fixed at a fine of $100.

Appellant objected to the sufficiency of the information because there was a variance between the date of the offense as alleged in the complaint, and as set out in the information. While said objection was not put in title form of a motion to quash the information, we think same should be given effect. The complaint alleges the date of the offense as of February 14, 1921, and the information states said date as of March 24, 1921. This difference in the date is fatal to the validity of the information, and appellant’s objection to the sufficiency of same should have been sustained. Vernon’s C. C. P. p. 237, subd. 4; Huff v. State, 23 Tex. App. 291, 4 S. W. 890; Lackey v. State, 53 Tex. Cr. R. 459, 110 S. W. 903.

Appellant excepted to the charge of the trial court for its failure to define the term “willfully” as used in the complaint and information. This should have been done, but as this is a misdemeanor ease, our decisions hold that in a case of that character it is not sufficient to except to the charge of the court as given for failing to give some additional desired charge, but that a special charge must he presented and asked in order to avail the accused on appeal. In misdemeanor cases it is not necessary for the trial court to give a written charge to the jury unless requested so to do in writing, and by parity of reason, the trial court is not required to give a charge upon any special issue, unless also requested so to do in writing. The omission of the court to give in charge to the jury a definition of the term “willfully” in response to the exception would hence be held by us not to constitute reversible error. Vernon’s C. C. P. p. 499, art. 739, and authorities cited.

The trial court should not assume in his charge the truth of any controverted issue of fact, but should submit all such issues to the jury for their decision.

The affidavit on file could be made the basis for a new information, correctly charging the date of the offense. The fact that the information is not filed at the same time as the complaint is no valid objection thereto.

For the error of the' variance mentioned the judgment of the trial court will be reversed, and the cause remanded. 
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