
    BROWN v. STATE.
    (No. 3290.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1914.
    Rehearing Denied Nov. 18, 1914.)
    1. Criminal Law (§§ 1095, 1102) — Appeal-Statement op Facts — Bill op Exceptions —Filing—Time.
    Where, in a prosecution for impersonating an officer, neither the statement of facts nor the bills of exceptions were filed within the time allowed by law in misdemeanor cases, they would be stricken on motion.
    . [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2847; Dee. Dig. §§ 1095, 1102.]
    2. Criminal Law (§ 730) — Trial—Cueing Error.
    Improper remarks of counsel for. the state in his closing argument are not ground for reversal, where the court instructed the jury not to consider them.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1693 ; Dee. Dig. § 730.]
    3. Criminal Law (§ 1144) — Appeal—Statement op Facts — FtLiNG-^-TiME — Presumptions.
    Where the statement of facts was filed too late to be considered, it will be presumed on appeal that the venue was properly proved.
    [Ed. Notei — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. § 1144.}
    4. Criminal Law (§ 564) — Venue—Proop op Venue.
    Where, in a prosecution for impersonating an officer, a witness testified that she and her brother were camping near the house of M., in Sylvester, on the night of November 20th, when defendant attempted to arrest her, and that Sylvester was in F. county, the venue was sufficiently proved; there being no claim that the offense was committed at any other or different place.
    [Bd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 726, 1-277-1284; Dec. Dig. § 564.]
    5. Criminal Law (§§ 763, 764) — Trial—Instructions — Weight of Evidence.
    An instruction that if defendant did unlawfully and falsely assume and pretend to be a deputy sheriff of F. county, and then and there take on himself to act as such officer, and as such did try to arrest and did demand the arrest of M., and, while pretending to be such deputy sheriff, did demand that M. submit to arrest by him while falsely pretending to be such a deputy sheriff, and that in truth he was not a deputy sheriff, and was not authorized to make such arrest, and knew that he was not a deputy sheriff, then the jury should find him guilty, etc., was not objectionable as on the weight of the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752, 1768, 1770; Dec. Dig. §§ 763, 764.]
    6. False Personation (§ 2) — Elements oe OREENSE — WlLLEULLNESS.
    Pen. Code 1911, art. 424, having defined the offense of false personation without using the term “willful,” the court, in a prosecution for violating such section, need not require that defendant’s act should have been willfully done, nor define “willful,” though criminal intent and guilty knowledge were elements of the offense.
    [Ed. Note. — For other cases, see False Per- ■ sonation, Cent. Dig. § 1; Dec. Dig. § 2.]
    7. Indictment and Information (§ 122)— Sufficiency — Elements of Offense — Variance.
    Since, under Pen. Code 1911, art. 424, making it an offense for any person to falsely assume or pretend to be a deputy sheriff, it is not essential to charge that the act was willfully done, the fact that the complaint charged that defendant “unlawfully, willfully, and falsely assumed and pretended,” etc., to be a deputy sheriff, while the information only charged that he “unlawfully and falsely assumed and pretended,” etc., was not a fatal variance.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 321-325; Dec. Dig. § 122.]
    Appeal from Fisher County Court; L. C. Miller, Judge.
    R. A. Brown was convicted of falsely pretending to be a deputy sheriff and attempting to arrest another, and he appeals.
    Affirmed.
    L. B. Allen and L. H. McCrea, both of Roby, 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
    
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was convicted of falsely assuming and pretending to be a deputy sheriff, and did try to arrest and demand that Mrs. Eoline Myler submit to arrest, etc., and his punishment assessed at six months’ confinement in the county jail.

The term of court at which appellant was tried adjourned July 25th. The statement of facts was not filed within the time allowed by law in misdemeanor cases, and the motion of the -Assistant Attorney General to strike it from the record must be sustained. Durham v. State, 155 S. W. 222. ’

The bills of exception are in the same condition, except the one complaining of the remarks of counsel for the state in his closing argument. As the court instructed the jury not to consider such remarks, they were not of that character to call for a reversal of the ease. As before stated, the other two bills were not filed in time to authorize the court to consider them, but, if we did do so, they would present no error. In one it is urged that the court should have instructed a verdict for defendant on the ground that the state had not proved the offense to have been committed in Fisher county, if committed as alleged.

The statement of facts having been filed too late to be considered, we must presume that venue was proven. But, even though the statement of facts was not filed in proper time, we have read it, and Mrs. Myler testified that:

“She and her brother were camped near the house of Mr. McNiel in Sylvester on the night of November 20th, when the attempt to' arrest her was made and the indignities heaped upon her-by appellant; that Sylvester was in Fisher county.”

This clearly proved the venue of the offense, and no question is raised in the testimony that the place the offense is alleged to have taken place at was at any other or different place.

The next bill complains that the court-did not define the meaning of the words “impersonation of an officer.” The court did not use those terms in his charge. The court, in submitting the issue, instructed the jury:

“Now, if you believe from the evidence, beyond a reasonable doubt, that the defendant in Fisher county, Tex., did on or about the 20th day of November, A. D. 1913, and within two years next before the filing of the information herein, did unlawfully and falsely assume and pretend to be a deputy sheriff of Fisher county, and did then and there take upon himself to act as such officer, and as such officer did try to arrest, and did demand the arrest of, Mrs. Eoline Myler, and, while pretending to be such deputy sheriff, did demand that Mrs. Eoline Myler submit to arrest by him (the said R. A. Brown), while falsely pretending to be such deputy sheriff, and that in truth and in fact the said R. A. Brown, at the time alleged, was not a deputy sheriff, and that he was not authorized to do and perform and do said acts and things, and that the said R. A. Brown knew that he was not such deputy sheriff as he pretended to be, you will find the defendant guilty and assess his punishment at any term in the county jail not exceeding six months, or you may, in your discretion, assess his punishment by a fine in any sum not exceeding $500.”

No words were used that any person of common understanding could or would be misled as to their plain meaning.

The appellant, in his only remaining bill, complains that the above copied paragraph of the charge is upon the weight to be given the testimony. A cursory reading of it, we think, shows this complaint to be without merit.

He also complains that in this paragraph of the charge the court omits the word “willfully,” and does not require the jury to find that the acts were willfully done. While the word “willful” is not used, yet the facts required to be found, beyond a reasonable doubt, before the jury would be authorized to convict necessitate a finding that the act was done willfully, and, as that term is not used in the statute defining the offense (article 424, Penal Code), it was not necessary for the court to do so in his charge, nor define the meaning of the word. While criminal intent and guilty knowledge are constituent elements of this offense, yet the charge, as submitted by the court, required a finding as to these matters before authorizing a conviction.

These are all the bills in the record. However, in the record we find a motion in .arrest of judgment, calling the attention of the court to a variance in the complaint and the information. In the complaint it is alleged that, appellant did “unlawfully, willfully, and falsely assume and pretend,” etc., while in the information it is only alleged that appellant did “unlawfully and falsely assume and pretend,” etc.; that the omission of the word “willfully” in the information, it being in the complaint, creates a fatal variance, for which the judgment should be arrested. As before stated, article 424 of the Penal Code makes it an offense for “any person to falsely assume or pretend to be a deputy sheriff”; therefore it was not necessary for the complaint or information to charge that the act was willfully done, and the information charged the offense under the law. Both charge the same offense in exactly the same way, with the exception of the omission of this word in the information, and, as it charged the offense alleged with the word omitted, this presented no variance for which the information should have been quashed, and the court did not err in overruling the motion in arrest of judgment. State v. Elliott, 41 Tex. 225.

If the statement of facts was in condition that we could consider it, the evidence amply supports the verdict, and the judgment is affirmed.  