Moore v. State , 48 Tex. Crim. 394 ( 1905 )

The judgment was affirmed, and is now before us on rehearing. Appellant in his motion calls our attention to the fact that the indictment alleges the assault occurred on the 13th day of September, 1904, and that it was presented by the grand jury and filed on November 3rd, 1904. Prosecutrix Francis Jones, in her testimony states, "She (defendant) shot me with a pistol on the 13th day of November, 1904." And also states, "This occurred in Fort Bend County, Texas, sometime in November, 1904." This is the only witness in the statement of facts showing when the assault occurred. So it appears from the evidence that the assault occurred some ten days after the indictment was returned by the grand jury. It must be proved that the offense was committed prior to the presentment of the indictment. Clements v. State, 2 S.W. Rep., 379, citing Code Crim. Proc., art. 420. The motion for rehearing is accordingly granted, and the judgment is reversed and the cause remanded.

Reversed and remanded.