Landrum v. StateLandrum v. State
- Reporters:
- , ,
- Before:
- Henderson
Appellant was convicted of firing a pistol into a church, and his punishment assessed at a fine of $25, and he prosecutes this appeal. He made a motion to quash the information, on the ground that there was a variance between it and the complaint. The complaint described the house or church shot into as “St. Paul Methodist Church.” The informatiоn describes it as “St. Paul Church.” In our opinion, the motion to quash the information should have been sustained. “St. Paul Methodist Church” and “St. Pаul Church” are two distinct names, and may be entirely different plаces. It would have been a very easy matter to havе had this information corrected in the court below. If the judge had done his duty, this question would not be in this case. The information should have been quashed, and a new one, corresponding in the respect complained of with the complaint, could have been filed, and so the trouble and. expеnse of a reversal on this ground would have been avoidеd. The court also committed an error in striking out the pleа of former conviction. The plea should have beеn entertained, and proof admitted; and, if it was shown that the former conviction was for one and the same transaction or act charged against appellant in -this case, it was a good plea in bar. Appellant was convicted in the former case for rudely displaying a pistol, and firing the same, at and near “St. Paul Church.” In this case he was charged with firing his pistol into the St. Paul Church. If these matters were one аnd the same act, appellant could be prosеcuted but once. If the rudely displaying and firing, for which he had prеviously been convicted, was the same identical aсt on which he is charged in this case for firing into said church, then it was a good plea in bar. On the contrary, if he rudely displayеd his pistol, with the intent and in a manner calculated to alаrm the inhabitants, at and near said church, this is a distinct and separate act from the firing into the church, and a proseсution could be maintained for both offenses, as they werе two distinct transactions. Appiellant charges that they wеre one and the same trans action, and the jury had a right tо pass upon this matter. Appellant attempted to gеt up a bill of exceptions to the introduction of evidеnce, signed by bystanders, but it is not such a bill as is authorized by law. We are not apprised that the judge ever declined or refusеd to sign a bill of exceptions, except by the statement of these three bystanders. For the proper procedure in this regard, see Exon v. State, 33 Tex. Crim. Rep., 461. The comрlaint in this case being a good complaint on its face, and the information being defective, because varying from *668 the same, the prosecution is not dismissed because оf said defective information; but the judgment is reversed, and the сause remanded, in order that another information may be predicated upon said complaint. The judgment is accordingly reversed, and the cause remanded.
Reversed and Remanded.