
    Jake Smith v. The State.
    Information—Variance — Arrest of Judgment.—Information charged that “ one Itich Carter did unlawfully make and commit, in and upon one Gena Childress, an aggravated assault and battery with a certain -, had and held in the hands of him, the said Jake Smith, said knife being then and there a deadly weapon,” etc. The affidavit upon which . the information was based charged that the assault was made by Jake Smith, and not by “ one Bich Carter,” as alleged in the information. A motion in arrest of judgment on account of this variance was overruled by the trial court. Held, error.
    Appeal from the County Court of Delta. Tried below before the Hon. C. S. Nidevek, County Judge.
    No brief for the appellant.
    
      Thomas Ball, Assistant Attorney-General, for the State.
   White, P. J.

The information in this case reads : “In the name and by the authority of the State of Texas: And now comes Jno. W. Rountree, county attorney of Delta County, Texas, and presents in County Court of Delta County, Texas, this information, and files with it the affidavit of Rich Carter, upon which it is founded, and shows to the court that on heretofore, to wit, on the third day of April, 1880, in Delta County, one Rich Carter did unlawfully make and commit, in and upon one Gena Childress, an aggravated assault and battery, with a certain-, had and held in the hands of him, the said Jake Smith, said knife being then and there a deadly weapon, but under circumstances not amounting to an intent to murder or maim ; contrary to law, and against the peace and dignity of the State.”

The complaint, which was made by Rich Carter, charges that the assault was made by Jake Smith, and not by “ one Rich Carter,” as is alleged in the information, supra. A motion, on account of this variance, was made in arrest of the judgment, but was overruled. The court should have sustained the motion and quashed the information.

The judgment is reversed and the cause remanded.

Reversed and remanded.  