(dissenting).
Conviction is for aggravated assault, punishment assessed being one year in the county jail.
My brethern have reached the conclusion that the judgment of conviction should be affirmed, as is evidenced by the original opinion and the opinions on rehearing. Feeling that the principle involved is of grave importance, I think it proper to record the reasons why I cannot agree with them.
*372Omitting the formal parts, the complaint and information charged that “William Cabness in and upon Georgia Mae Brown did then and there unlawfully commit an aggravated assault and battery, and did then and there strike, beat, bruise and wound the said Georgia Mae Brown, the said William Cabness being then and there an adult male and the said Georgia Mae Brown being then and there a child.”
It is not necessary to set out the repulsive facts upon which the State relies for a conviction. They do not show that appellant struck, beat, bruised or wounded Georgia Mae Brown. In view of this failure in the proof it is urged that the case as plead and as proven presents a variance which demands a reversal.
Under all of our authorities an assault may be charged without setting out the particular acts of violence constituting the assault, nor need the means used be alleged. It is unfortunate, perhaps, that the present pleading for the State did not thus charge the assault, and then allege the fact that appellant was an adult male and the injured party was a child. If the pleading had been as indicated aggravated assault would have been properly averred and the question of variance could not have arisen.
It has been suggested that because an assault is alleged in the complaint and information, and also the facts which render it aggravated, that the averments as to the means used may be regarded as surplusage. Such view appears to be supported in Webb v. State, 36 Tex. Cr. R. 41, 35 S. W. 380, in which it was said that the information having alleged that accused, an adult male, committed an aggravated assault upon a female, naming her, sufficiently charged an aggravated assault, and that “the further charge in the information as to how said assault was committed may be rejected as surplusage.” Immediately following appears this statement. “However, there is nothing as it occurs to us, erroneous in having stated the means by which the alleged assault was committed, and there appears no variance in the proof.” It will be noted that the court was passing on the - validity of an information, and the expression that the averment of the means used might be regarded as “surplusage” was not necessary to a decision of the point before the court. It may be somewhat significant that the Webb case on the question of “surplusage” has never been cited in an assault case as supporting the proposition that an *373averment as to the means used may be disregarded. The Webb case was decided in April, 1896. Just four months earlier the court had before it Kinnard v. State, 35 Tex. Cr. R. 276, 33 S. W. 234, another aggravated assault case, in which the information was attacked, and in which case the court said:
“The information, in proper terms, charged an aggravated assault, the alleged aggravation consisting in an assault by an adult male upon a child; and the allegation that it was committed with switches is a charge of the means used, and the only effect of this was to confine the state to the proof of the means so charged.” Like the Webb case, the expression copied from the Kinnard' opinion was not necessary to the decision of the question then before the court.
The general rule as to pleading should control, which is that if the offense is defined with unnecessary particularity it must be proven as alleged. The case of Berry v. State, 40 S. W. 984, perhaps furnishes an illustration of what may be regarded as surplusage in an information charging aggravated assault. The general rule as it applies to aggravated assault cases is stated in Branch’s Ann. Tex. P. C., Sec. 1589, page 936, as follows:
“If the indictment, information, or complaint alleges the means by which the assault was committed, such allegation, whether necessary or unnecessary, being descriptive, must be substantially proven as alleged. Under an indictment charging murder, assault to murder, aggravated or simple assault, which alleges the means, a conviction will not be sustained even for simple assault unless the means alleged is substantially proven.”
Many authorities are cited in support of the text, among them being Holliday v. State, 35 Tex. Cr. R. 133, 32 S. W. 538 and Simpson v. State, 48 Tex. Cr. R. 328, 87 S. W. 826.
The form of the complaint and information does not alter the question of variance nor permit ignoring the averment of the means used, as surplusage. The language means the same as though it was averred that appellant did strike, beat, bruise, and wound Georgia Mae Brown, she being a child, and appellant being an adult male.
Upon further consideration of the matter in view of appellant’s motion for rehearing, I think the motion should be *374granted, the opinion of affirmance should be withdrawn, and the judgment of conviction should be reversed and the cause remanded because of a failure to prove the assault as alleged. Therefore, I respectfully record my dissent to the conclusions of my brethern.