Appellant was convicted of the offense of an assault with a prohibited weapon, and his punishment was assessed at confinement in the state penitentiary for a term of two years.
The prosecution was initiated under Article 1151, P. C., which provides as follows:
"If any person shall willfully commit an assault or an assault and battery upon another with a pistol, dirk, dagger, slung shot, sword cane, spear or knuckles made of any metal or made of any hard substance, bowie knife, or any knife manufactured or sold for the purpose of offense or defense, while the same is being carried unlawfully by the person committing said assault, he shall be deemed guilty of an assault with a prohibited weapon and upon conviction shall be punished by a fine not to exceed two hundred dollars or by imprisonment in jail not to exceed two years, or by confinement in the penitentiary for not more than five years."
The indictment in this case, omitting the formal parts, reads as follows:
"* * * That one, WILL McKINNEY on the 3rd day of May, in the year of our Lord One Thousand Nine Hundred and 45 with force of arms, in the County and State aforesaid, while then and there unlawfully carrying on and about his person a pistol, in and upon David Eugene Foster, did wilfully commit an assault; contrary to the form of the statute in such cases made and provided," etc.
It is apparent from the allegations in the indictment that *Page 454 it charges nothing more than a simple assault since it fails to charge that appellant committed an assault upon Foster with the pistol, a prohibited weapon. In the case of Reneau v. State, 106 Tex.Crim. R., 291 S.W. 899, this court had before it an indictment similar in all respects to the one in the instant case and held it insufficient to charge an offense under the statute above quoted. It may not be amiss to direct attention to Willson's Criminal Forms, (5th Ed.) p. 306, Form 507.
In reviewing the record we also find a variance between the allegations in the indictment and the proof. In the indictment it is charged that appellant committed an assault upon David Eugene Foster. The assaulted party testified that his name was Eugene Foster Davis. This constitutes a fatal variance. See Stovall v. State, 82 S.W.2d 975, 128 Tex.Crim. R.. See also Branch's Crim. Law, p. 399, sec. 621, and authorities cited.
From what we have said, it follows that the judgment of conviction must be reversed and the cause remanded, and it is so ordered.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON STATE'S MOTION FOR REHEARING.