McKinney v. State

The State has filed a motion for rehearing pointing out that the indictment as copied in the transcript before us at the time the original opinion was prepared by inadvertence had omitted therefrom an allegation that the assault was committed with the pistol alleged to have been unlawfully carried. The clerk has forwarded a supplemental transcript containing the indictment which properly charges the offense, and that part of our opinion holding to the contrary is no longer pertinent.

However, the question of variance as to the name of the injured party remains in the case. The State's motion refers us to many instances in the statement of facts where the injured party was referred to as "Foster." This is true, and that was his given name, but the injured party himself testified that his name was "Eugene Foster Davis," and not "David Eugene Foster," as alleged. When the injured party testified that his surname was Davis it was sufficient to put the State on notice that it was confronted with a variance unless by proof it could bring itself within that provision of Art. 401 Cow. C. P. as follows:

"When a person is known by two or more names, it shall be sufficient to state either name."

The witnesses who did testify for the State appear not to have been well acquainted with the injured party, and no evidence is found showing that he was known both as Foster and Davis. See Johnson v. State, 126 Tex.Crim. R.,71 S.W.2d 280; McGinnis v. State, 127 Tex.Crim. R., 78 S.W.2d 978 and cases cited therein; Perry v. State, 4 Tex. Cr. App. 566; Schindler v. State; 17 Tex. Cr. App. 408 Luttrell v. State,65 Tex. Crim. 102, 143 S.W. 629; Roberts v. State, 65 Tex. Crim. 534,144 S.W. 940; Pena v. State, 164 S.W.2d 703; Willis v. State, 24 Tex.Crim. R.; Dennis v. State, 74 S.W. 559.

The motion for rehearing is overruled.