DocketNumber: No. 20806.
Citation Numbers: 137 S.W.2d 1046, 138 Tex. Crim. 610
Judges: KRUEGER, Judge.
Filed Date: 1/31/1940
Status: Precedential
Modified Date: 1/13/2023
The conviction is for an aggravated assault; the punishment, a fine of $100. *Page 611
The prosecution proceeded under Art. 1149, P. C., which reads as follows:
"If any driver or operator of a motor vehicle or motorcycle upon the public highways of this State shall wilfully, or with negligence, as is defined in this title in the chapter on negligent homicide, collide with or cause injury less than death to any other person upon such highway, he shall be held guilty of aggravated assault and shall be punished accordingly unless such injuries result in death, in which event he shall be dealt with under the general law of homicide."
The charging part of the complaint and information at the time such pleadings were filed was as follows: That W. L. McDonald "did then and there drive an automobile upon a public highway of this state, to-wit, highway 80 and did then and there commit an aggravated assault in and upon the person of Mrs. B. D. Jackson by then and there wilfully and withgross negligence colliding with and causing injury to the person of the said Mrs. B. D. Jackson, who was then and there upon said highway." (Italics ours).
As shown in bill of exception No. 1, prior to announcing ready for trial, counsel for the State requested and was granted the permission of the court to amend the complaint and information by striking out the word "gross" before the word negligence" in the body of the complaint and information. The amendment was made over appellant's objection, and the question is properly presented to this court for review.
In the Revised Penal Code of 1925, Art. 1149, the word "gross" before the word "negligence" was omitted. Apparently, in taking the complaint herein the counsel for the State failed to note the change in the statute. In Carlton v. State,
"Any matter of form in an indictment or information may be amended at any time before an announcement of ready for trial upon the merits by both parties, but not afterward. No matter of substance can be amended." *Page 612
In Patillo v. State, 3 Tex. App. 442[
The judgment is reversed and the prosecution ordered dismissed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.