OPINION
Appellant was convicted by a jury of cruelty to animals under V.T.C.A. Penal Code, Sec. 42.11(a)(1). The court assessed punishment at 60 days’ confinement in the Harris County jail. On appeal, appellant *921 complains that the information was insufficient and that the State was permitted to make improper jury argument.
The information alleges that appellant “did then and there unlawfully, intentionally, and knowingly torture an animal, namely, a dog.” Appellant timely filed a motion to quash the information claiming that the information provided inadequate notice and was insufficient to bar a subsequent prosecution for the same offense. The court overruled the motion to quash.
Since we base our decision on the sufficiency of the information, a discussion of the facts is omitted as unnecessary.
Appellant’s first ground of error complains that the information failed to apprise him of the charge against him with such particularity as to enable him to prepare his defense. This contention was timely raised and therefore fundamental constitutional protections of adequate notice and due process are involved.
Drumm v. State,
In an examination of appellant’s contention, we are reminded that the requirements of specificity are applicable to informations, as well as indictments. Art. 21.23, V.A.C.C.P. Therefore, an information must allege facts sufficient to give the accused notice of the particular offense with which he is charged. Art. 21.11, V.A. C.C.P. It is not sufficient to say that the accused knew with what offense he was charged; rather, we must inquire as to whether the face of the instrument sets forth in plain and intelligible language sufficient information to enable the accused to prepare his defense.
Moore v. State,
The State argues that the legislative definition of torture in V.A.C.S., Art. 180 makes unnecessary the inclusion of a definition of torture in the information.
Baldwin v. State,
In many cases, an information will be considered sufficient if it follows the language of the statute. However, this rule applies only where the information is framed under a statute which defines the act constituting the offense in a manner that will inform the accused of the nature of the charge. In other words, if the language of the statute is itself completely descriptive of the offense, an information is sufficient if it follows the statutory language.
Lopez v. State,
*922
While we find no decisions on this particular issue under Sec. 42.11, a similar contention was decided by this Court under Art. 1374, V.A.P.C., 1925.
Barnett v. State,
The State attempts to distinguish Barnett by pointing out that Barnett was decided under the former Penal Code. The State contends that Art. 1374 contains a list of torturous acts following the word “torture” and therefore, the “by shooting” description in Barnett was needed to distinguish among the various statutory tortures. This is a distinction without difference. Even if we accept the State’s argument on this point, the language “by shooting” still provided the accused notice of the specific type of act he would be required to defend. However, as we read Art. 1374, the list of acts following the word “torture” is not merely descriptive of torture but, rather, those acts are a continuing list of acts of cruelty, each one separate of the others. Further, shooting is not listed as an act following “torture” in Art. 1374, so the use of the phrase “by shooting” in Barnett was not to distinguish among other statutory offenses but, rather, was required by “the obvious intent of the legislature.”
We have compared Art. 1374 and Sec. 42.11 and find the differences, as to the act of torturing an animal, a matter of form. Such a charge in form has no impact on the requirements of an information under Sec. 42.11. Branch’s Texas Ann.P.C., 3rd Ed., Sec. 42.11, Legislative Sources and Explanatory Comments at pg. 219. The information was insufficient to give appellant adequate notice and enable him to adequately prepare his defense.
Sassano v. State,
The judgment is reversed and the cause remanded.
Notes
. The State argues that the information is sufficient because it follows the suggested forms in two “form books.” We note with interest the suggested form in the eighth edition of Morrison and Blackwell’s Texas Practice, Criminal Forms Annotated, Sec. 18.14:
“did then and there intentionally and knowingly commit the following acts: to wit— [specify] — on an animal to wit: — [identify]