
    STOCKTON v. STATE.
    (No. 5979.)
    (Court of Criminal Appeals of Texas.
    Nov. 24, 1920.)
    1. Criminal law <&wkey;968(2) — Indictment ana information <&wkey;>137(5) — Defect in complaint as -to name of person making it ground for motion to quash but not for motion in arrest.
    An objection to a complaint for misdemeanor because -the body of the complaint states that it is made by a different person than the one named in the jurat, though sufficient on motion to quash, comes too late on motion in arrest of. judgment; the mistake being amendable.
    2. Criminal law <&wkey;970(11 ) — Variance between complaint and information as to date of offense is ground for arrest of judgment.
    A variance between the complaint and information for a misdemeanor as to the time of the offense is a matter of substance and can be raised by motion in arrest of judgment.
    3. Indictment and information <&wkey;45 — New information is warranted in ease of variance between complaint and information.
    Where a complaint for misdemeanor is sufficient except for an amendable defect but there is a variance between the complaint and information as to the time of the offense, a new information may be filed based on the complaint.
    Appeal from Cameron County Court; H. L.' Yates, Judge.
    H. J. Stockton was convicted of misdemeanor, and he appeals.
    Reversed and remanded.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

In this case appellant was convicted in the county court of Cameron county of a misdemeanor, and his punishment fixed at a fine of $10.

No motion for a new trial appears to have been made by appellant, and no motion was made to quash the complaint or information; but appellant made a motion in arrest of judgment, raising two questions, which /are presented and relied upon in this court. The first complains because of the fact that in the body of the complaint, and affixed thereto, appears the name of-Joe Reid, as the maker of said affidavit and complaint, while in the jurat it is recited that said complaint is “sworn to and subscribed by A. B. Cole.” This would be a sufficient objection to the complaint, if made in a motion to quash, unless the state saw fit to amend; but it has been held that, if such objection is made before the trial court, the mistake in the name of the affiant, as set out in the jurat, may be amended. Flournoy v. State, 51 Tex. Cr. R. 29, 100 S. W. 151. This being the case, we hold that this objection comes too late after judgment, and that we cannot sustain same.

It was also raised by motion in arrest of judgment, and is here presented, that the date of the offense, as alleged in the information, is different from that alleged in the complaint. The original papers appear to have been sent up with the record, and from our inspection of same we have concluded that the objection was well founded. The complaint alleges the offense as being committed on the. 22d day of November, 1919, while the information alleges same to have taken place on the 2d day of said month. It seems to have been almost uniformly held by this court that the time of. the offense is a matter of substance,' and that the same cannot be amended. Drummond v. State, 4 Tex. App. 150; Sanders v. State, 26 Tex. 120; Goddard v. State, 14 Tex. App. 566; Huff v. State, 23 Tex. App. 291, 4 S. W. 890.

It is also pointedly held in many cases that a variance between the complaint and information as to the time of the offense is fatal. Hoerr v. State, 4 Tex. App. 75; Hawthorne v. State, 6 Tex. App. 562; Hefner v. State, 16 Tex. App. 573; Huff v. State, 23 Tex. App. 291, 4 S. W. 890; Baumgartner v. State, 23 Tex. App. 335, 5 S. W. 113; McJunkins v. State, 37 Tex. Cr. R. 117, 38 S. W. 994; Jennings v. State, 30 Tex. App. 428, 18 S. W. 90.

In Cole v. State, 11 Tex. App. 67, Judge Winkler says of sucli variance:

“The demands of the law seem to be met when there is a substantial agreement between the affidavit and the information in matters ot substance. They must agree as to the time and place of the commission of the offense,” etc.

We have been referred to but one case, and ¡have been unable to find but that one, in which it appears that this court has upheld the state’s pleadings when there was a variance between the complaint and the information, as to the time of the offense. See Shelton v. State, 27 Tex. Cr. R. 443, 11 S. W. 457, 11 Am. St. Rep. 200. An examination of this case discloses, however, that the opinion, as prepared and announced by the court, does not state in what particular there was a variance between the complaint and information, but simply states that such variance is immaterial. In the syllabus of the case, it is stated by the reporter that the variance was as to the time. This case seems to be against the large majority of the holdings, and we are not inclined to follow it. We think there shoilld be agreement between the complaint and information, as to the time of the offense, and that, inasmuch as this was a matter of substance, it could be raised by a motion in arrest of judgment.

The complaint being apparently sufficient, subject to the suggested amendment to the jurat, we think it would be proper for the prosecution to file a new information based thereon, if they see fit; and, in view of this fact, the case will be reversed and remanded only. 
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