Johnson v. State ( 1878 )

White, J.

The affidavit upon which the information in this case was based was made by one J. S. Smith, and charges “ that Jim Johnson did take, steal, and carry away out of the possession of him, affiant, and the property of C. O. Bowen, four watch-chains, of the value of three dollars and fifty cents,” etc. In the information the charge is that the accused “ did, then and there, without the consent of the owner, fraudulently take, steal, and carry away, from and out of the possession of one C. O. Bowen, four watch-chains, of the value of three dollars and fifty cents,” etc.

As was said by this court in Davis v. The State, 2 Texas Ct. App. 184, that by the 8th section of the act of 1876 (Acts Fifteenth Legislature, 20), providing the mode of procedure in prosecutions by information, the affidavit is made a most important and fundamental part of the information. “ The information shall be based upon it,” is the language used. It follows that if the information must be based upon the affidavit, then the offense stated in the information must be characterized by, and correspond with, that as stated in the affidavit. See Daniels v. The State, 2 Texas Ct. App. 353; Thornberry v. The State, 3 Texas Ct. App. 36; Turner v. The State, 3 Texas Ct. App. 551; Deon v. The State, 3 Texas Ct. App. 435.

As seen from the charging portions of the two instruments above quoted, the information does not follow or correspond with the affidavit as to the person from whose possession the property was stolen, but alleges that it was stolen from the possession of another and different person from the one alleged in the affidavit.

This is a fatal variance, which renders it necessary that the judgment below should not only be reversed but, because, for the reasons stated, the information being also invalid, the case must be dismissed.

Reversed and dismissed.