
    ESTRADA v. STATE.
    (No. 5912.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1920.
    Rehearing Granted Jan. 5, 1921.)
    1. Criminal law &wkey;>970(ll) — Variance as to name of accused in complaint and information held not subject to motion in arrest.
    Where defendant’s name in a criminal complaint was spelled “Estreada,” and in the information first as “Estrada” and subsequently as “Esteada” and “Estreada,” the variance was not such as to be the subject of a motion in arrest of judgment.
    2. Indiotmc-nt and information &wkey;>8l (I) — Immaterial that name of accused is first properly set out and then referred to as “said” party.
    Where the name of accused is originally properly set out in an information, and afterward referred to as the “said” party, a variance in the spelling or setting out of the name is of no importance.
    On Motion for Rehearing.
    3. Indictment and information <&wkey;l76— Variance fatal, where evidence shows offense committed subsequent to filing of information.
    Where the complaint and information, sworn to on February 12, 1920, alleged that theft of property of the value of less than «$50 was committed on February 11, 1920, and the state’s evidence proved that the offense was committed on, March 9th, thereafter, the variance was fatal.
    Appeal from Bexar County Court; Nelson Lytle, Judge.
    Josephine Estrada was convicted of theft of property under the value of $50, and she appeals.
    Reversed and remanded on rehearing.
    Heilbron &. Matthews, of San Antonio, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of theft of property under the value of $50. ,

' The state makes a case on the facts. The appellant most vigorously denies the accusation and the truth of the state’s case. This phase of the case, it occurs to us, is peculiarly one of fact, which the jury has decided adversely to appellant. We would not feel justified in reversing for this reason under the condition of this record.

In motion in arrest of judgment appellant claims there is a variance between the allegations in the complaint and information with reference to the name of the accused. In the complaint her name is spelled “Estreada.” In the information her name is alleged first as “Estrada.” In two other places in the information her name is spelled “Esteada” and “Estreada.” We are not prepared to hold that there is such a variance in the name as would be the subject of a motion in arrest of judgment. Idem sonans is often a very close question, and depends somewhat upon not only the spelling, but the pronunciation. How the two names as set out in the complaint and information are sounded is not shown by the record. They may have the same pronunciation. The names seem to be Spanish or Mexican. If there was thought to be a variance of sufficient importance to require a new information, something should have been shown in the record before the court as to the pronunciation, and whether it was of sufficient importance to require the sustaining of the proposition of variance. This was not done on the trial, and the question was only raised on the pleading itself in the motion in arrest of judgment. We do not feel justified in reversing the judgment for this reason as presented.

The fact that the name was spelled three different ways in the information we do not think of sufficient importance. The name first appears as Estrada. When the name’ is mentioned in the subsequent' portions of the information, it is referred to as the “said” party. Where the name originally is properly set out, and afterward referred to as the “said” party, usually the variance in the spelling or setting out of the name is not of importance. Where, in -.the first instance, the party is properly named, usually it is sufficient to refer to the accused in subsequent portions of the pleadings as the “said” party.

As this ease presents the matter, we are of opinion there is no sufficient reason why the judgment should be reversed; therefore it is ordered affirmed.

' On Motion for Rehearing.

On á former day of the term the judgment herein was affirmed. Upon motion for rehearing our attention has been called to the fact that there is a variance between the allegations in the complaint and information and the evidence introduced on the trial. The complaint and information allege an offense committed on February 11, 1920. The complaint was sworn to on February 12,1920. The evidence introduced by the state to prove the case shows the matter relied upon occurred on March 9th thereafter. This escaped our attention in writing the original opinion, and in fact was not called to the attention of the court. We find this variance, and that the offense, if any, was committed as proved after the complaint and information had been filed. It is fundamental, as well as statutory, that an offense must be committed before the indictment or the information and complaint, and not afterward.

Without discussing the other questions in the motion for rehearing, this requires a reversal of the judgment. The motion for rehearing is granted, the affirmance set aside, the judgment reversed, and the cause remanded. 
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