ON MOTION FOR REHEARING.
KRUEGER, Judge.In his motion for rehearing appellant, for the first time, calls our attention to a claimed variance between the complaint and information and the proof offered in support thereof.
Omitting the formal part, the complaint charges that “heretofore on the 5th day of February, A. D., 1941, Ervin William Overmire did then and there drive and operate a motor vehicle, towit, an automobile, on a public highway located in the City of Houston, Harris County, Texas, and then and there commit an aggravated assault in and upon the person of Gladys Irene Hanna, by then and there willfully and with negligence *349causing and permitting said automobile to collide with another automobile in which the said Gladys Irene Hanna was then and there a passenger, etc.”
The information follows the language of the complaint.
Appellant takes the position that the evidence does not sustain the allegation that the assault was both willfully and negligently done. We do not deem it necessary to again set out the facts relative to the occurrence which resulted in the injury to the person of Gladys Irene Hanna inasmuch as they have already been stated in the original opinion. It is our opinion that the facts are sufficient from which the jury could reasonably draw the conclusion that the act on the part of the defendant was either willful or with gross negligence, either of which would be sufficient to sustain the conviction. See Huff v. State, 58 S. W. (2d) 113, on motion for rehearing; Young v. State, 47 S. W. (2d) 320; Schultz v. State, 137 Tex. Cr. R. 164, in which the question is discussed in the opinion on motion for rehearing; also Clifton v. State, 138 Tex. Cr. R. 258; Franz v. State, 135 Tex. Cr. R. 47.
Believing that the proper disposition was made of this case upon the original submission, the motion for rehearing is overruled.
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.