Piland v. State

• Decision Date: 23 November 1898
• Citation: 47 S.W. 1007
• Parties: PILAND v. STATE.
• Court: Texas Court of Criminal Appeals

47 S.W. 1007

PILAND v. STATE.

Court of Criminal Appeals of Texas.

November 23, 1898.

Appeal from Camp county court; Sam D. Snodgrass, Judge.

Henry Piland was convicted of the theft of a bale of cotton, and appeals. Affirmed.

Jones & Ralston, for appellant. Mann Trice, for the State.

DAVIDSON, J.

This conviction was for the theft of a bale of cotton.

Appellant filed what he terms a motion for a new trial and in arrest of judgment, the first ground of which suggests that there is a variance between the name of appellant as set out in the complaint and in the information. The complaint charges that "Henry Pelan did then and there unlawfully and fraudulently take one bale of cotton, * * * the property of R. L. Cason, with the intent to appropriate it to the use and benefit of him, the said Henry Piland." The information uses the name "Henry Piland" throughout. It is contended that the use of the name "Pelan" in the first instance in the complaint is a variance from the name "Henry Piland," subsequently used in said complaint and in the information. We do not believe this is a variance. No question was raised in regard to this matter until after the conviction. Appellant pleaded to the information which alleges his name to be "Henry Piland." A variance in the name of the person injured by the commission of the offense is much more serious than that of the defendant, for the latter can be cured by amendment, whereas the former cannot. Our statute provides that, when a party is arraigned, his name, as stated in the information or indictment, shall be distinctly called, and unless he suggests a different name, or that he is not indicted by his true name, it shall be taken that his name is correctly set forth in the pleading, and that thereafter he shall not be allowed to deny the same by way of defense. If he suggests that he bears a different name from that stated, the same shall be noted upon the minutes of the court, and the indictment amended, and the style of the case changed so as to give his true name, and the cause shall then proceed as if the true name had been so recited in the indictment. It occurs to us that this statute is made to meet just such a case as this. When the information was read, his name was read "Henry Piland," and to this he pleaded. We are of opinion that the point suggested by appellant comes too late. As before stated, this is not the name of a third party, but of the defendant himself, and by some mistake it seems that...