In the language of the Constitution, “all prosecutions shall be carried on in the name and by the authority of the State of Texas, and conclude ‘ against the peace and dignity of the State.’ ” Const., art. 5, sect. 12. The eighth subdivision of the article of the Code which prescribes the requisites for an information is, “thatthe information conclude ‘ against the peace and dignity of the State.’ ” Code Cr. Proc., art. 430. Art. 430 of the Code of Criminal Procedure further declares, that “ the rules laid down in this chapter with respect to the allegations in indictments, and the certainty required, are applicable also to informations.” The information in this case does not conclude, “ against the peace and dignity of the State.” It is well settled that that which the Constitution requires cannot be dispensed with by the courts. Sims v. The State, 43 Texas, 531; Cox et al. v. The State, ante, p. 254; Gould v. The People, 89 Ill. 216.
Again, there is a fatal variance between the allegations in the affidavit and information with regard to the ownership of the lands from which it is averred the timber was taken. The affidavit or complaint lays the ownership in Mrs. Howell Walker; the information charges that the land belongs to the heirs of Howell Walker. Code Cr. Proc., arts. 236, 431; Davis v. The State, 2 Texas Ct. App. 184; Thornberry v. The State, 3 Texas Ct. App. 36; Turner v. The State, 3 Texas Ct. App. 551; Deon v. The State, 3 Texas Ct. App. 435; Hoerr v. The State, 4 Texas Ct. App. 75; Johnson v. The State, 4 Texas Ct. App. 549; Stinson v. The State, 5 Texas Ct. App. 31; Casey v. The State, 5 Texas Ct. App. 462; Swink v. The State, 7 Texas Ct. App. 73.
The judgment is reversed and the cause remanded.
Reversed and remanded.