In the complaint upon which the information was based, and in the information as originally prepared and filed, the name of the defendant was stated to be John Smith. The record recites that, after announcement of ready for trial by both parties, “the defendant suggests to the court that his name was not John Smith, as stated in the information, but was John Wilson; whereupon the court ordered the style of the cause changed so as to give the true name of the defendant, and that the information and other papers in the cause be amended, which was accordingly done as to the information in said cause; and further ordered that this cause proceed to trial as if the true name had been first recited correctly.”
No change or amendment was made in the name, “ John Smith,” as originally set out in the complaint or affidavit upon which the information was based. It is contended that the complaint also should have been changed, so as to allege that John Wilson committed the assault, and that it then should have been sworn to again ; that, at any rate, it should have been so changed as to charge the offence against the same person named in the information ; and that because this was not done, the court erred in overruling defendant’s motion for new trial, and in arrest of judgment, and in rendering judgment on a verdict of guilty against John Wilson.
We are cited, in support of this position, to the eighth section of the Acts of the Fifteenth Legislature, p. 20, wherein it is expressly provided that the “information shall be based upon the affidavit,” and to numerous deci*157sions of this coui’t construing this provision of the statute, in which it is declared that, “if the information must be based upon the affidavit, then the offence stated in the information must be characterized by, and correspond with, that as stated in the affidavit.” Davis v. The State, 2 Texas Ct. App. 186, and other authorities in 3 and 4 Texas Ct. App. As thus enunciated, and now so well settled, the rule is unquestionably correct. In our opinion, it does not militate in the slightest degree against the action of the court in the case under consideration.
In the case of Bassett v. The State, 4 Texas Ct. App. 41, we held that art. 469 of the Code of Criminal Procedure, respecting misnomers in indictments, was applicable to misdemeanors as well as to felonies. It also follows that, if applicable to misdemeanors, it makes no difference whether the misdemeanor is being prosecuted by indictment or information, the procedure would be the same. The article referred to reads: “If the defendant, or his counsel for him, suggests that he bears some name different from that stated in the indictment, the same shall be noted upon the minutes of the court, the indictment amended, the style of the cause changed so as to give his true name, and the cause proceed as if the true name had been first recited in the indictment.” Pasc. Dig., art. 2938.
So far as we can perceive, the provisions of this statute were literally complied with in the case at bar. The information was amended, the style of the cause was changed, and the cause thereafter proceeded in the true name of the defendant, as suggested by himself. Up to the time of this suggestion by him, no objection is or can be urged to the legality or regularity of the proceedings. The information was based upon a complaint, and corresponded in every particular with it. In amending the information, the prosecution or case, as commenced by the State, was not changed ; it was simply a change of the name of the defendant and *158the style of the cause, ancl, though changed, the crime and the defendant were still the same. .
By the terms of the statute, it is the indictment or information which is to be amended. There is no provision for amending the complaint; nor, indeed, could it have been done without absolutely vitiating it. In Patillo v. The State, this court said : “ Clearly, the court had no right to amend, or permit any one else to amend, the affidavits. Affiant himself could not have done so without being sworn anew as to the amended statement. Whenever the court permitted the county attorney to amend the affidavit, it ceased to be the act of affiant.” 3 Texas Ct. App. 442.
But for the suggestion of misnomer by defendant, he would doubtless have been tried and properly convicted as John Smith. If he preferred to be tried and convicted in his own proper name, it was a right which the statute accorded him, and he alone could ask and have the information amended in that regard. He made the request, and it was accorded him, and he cannot now be heard to complain that the court did not do what he had no authority to demand, or it to grant.
There is no error in the proceedings had in the trial in the court below, and the judgment is therefore affirmed.
Affirmed.