Marshall v. State
| Decision Date | 21 May 1952 |
| Docket Number | No. 25805,25805 |
| Citation | 157 Tex.Crim. 340,248 S.W.2d 931 |
| Parties | MARSHALL v. STATE. |
| Court | Texas Court of Criminal Appeals |
Williams & Thornton and R. Richard Thornton, Galveston, for appellant.
George P. Blackburn, State's Atty. of Austin, for the State.
Appellant was convicted by the jury of negligent homicide in the second degree, and his punishment assessed at a fine of $3,000.
The facts evidence that appellant, while driving a car in the City of Galveston, had a collision with a car driven by L. C. Hunt, the latter's wife being with him at the time, and caused the death of said wife of Mr. Hunt.
There are about eight different and separate paragraphs to the only bill of exception found in the record. Undoubtedly this bill is multifarious, and cannot be considered by this court. Spruell v. State, 119 Tex.Cr.R. 317, 44 S.W.2d 733; Miller v. State, 129 Tex.Cr.R. 166, 84 S.W.2d 469; White v. State, 150 Tex.Cr.R. 546, 203 S.W.2d 222; Sharp v. State, 151 Tex.Cr.R. 637, 210 S.W.2d 174; Humphrey v. State, 152 Tex.Cr.R. 203, 212 S.W.2d 159; Smithwick v. State, Tex.Cr.App., 234 S.W.2d 237; Simpson v. State, Tex.Cr.App., 235 S.W.2d 920; Renfro v. State, Tex.Cr.App., 242 S.W.2d 772.
We find, however, a matter that is fatal to the conviction. The indictment in this case, returned by the Galveston County grand jury, alleges that appellant, while driving a motor vehicle upon a public street in the City of Galveston, through negligence and carelessness struck 'Cecile Hunt' and caused her death. The testimony shows that the deceased's name was 'Lucille Hunt'; nowhere in the statement of facts is the name, 'Cecile Hunt,' found. The allegata and probata do not correspond. Appellant was charged with taking the life of 'Cecile' Hunt, and the testimony shows he took the life of 'Lucille' Hunt. This is a fatal variance.
The judgment is reversed and the cause remanded.
To continue reading
Request your trial
-
Malone v. State
...was held that there was a fatal variance. See also Garlington v. State, 141 Tex.Cr.R. 595, 150 S.W.2d 253 (1941); Marshall v. State, 157 Tex.Cr.R. 340, 248 S.W.2d 931 (1952); 2 Jackson v. State, 419 S.W.2d 370, 371 Powell Battle and Paul Battell are names which are patently incapable of bei......
-
Jackson v. State, 40613
...indictment prior to its amendment, and 'Spearman' are idem sonans. Appellant's claim of fatal variance is sustained. Marshall v. State, 157 Tex.Cr.R. 340, 248 S.W.2d 931; Garlington v. State 141 Tex.Cr.R. 595, 150 S.W.2d 253; Newsom v. State, 142 Tex.Cr.R. 47, 151 S.W.2d The judgment is rev......
-
Manicchia v. State, 31972
...685, Sec. 70; Chaney v. State, 5. Tex.Cr.R. 283, 128 S.W. 614; Albidrez v. State, 158 Tex.Cr.R. 229, 254 S.W.2d 522; Marshall v. State, 157 Tex.Cr.R. 340, 248 S.W.2d 931. The judgment is reversed and the cause ...