OPINION ON STATE’S MOTION FOR REHEARING
ODOM, Judge.Motion for leave to file State’s motion for rehearing was granted so that we could reconsider one particular issue.
On original submission we held that the indictment in this case was subject to the motion to quash filed by appellant. The indictment failed to allege sufficient facts (particularly, the name of the kidnap victim) to give appellant notice of the charges against him and permit preparation of his defense. Drumm v. State, Tex.Cr.App., 560 S.W.2d 944. To this holding we adhere.
In footnote 5 of our opinion on original submission, referring to the defect raised by the motion to quash, we stated that the defect could have been cured by amendment of the indictment (Art. 28.10, V.A.C.C.P.), and also stated, “Alternatively, a statement in the record apprising the accused of the name of the victim of the ‘in-the-course-of-offense’ should suffice to *299show notice was given.” On rehearing the State submits that in this case such informal notice was given. On reconsideration we conclude that the indictment could not have been amended under Art. 28.10, supra, to cure the defect in notice, that a statement of informal notice is not sufficient, and that the indictment should have been quashed and must be dismissed.
Art. 21.01, V.A.C.C.P., provides that an indictment is the written statement of a grand jury accusing a person of an act or omission constituting an offense. Among the constitutional protections provided in Article I, Sec. 10 of the Texas Constitution, is that “no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury,” (except in certain cases not applicable here). The interpretive commentary to this provision in 1 Vernon’s Ann.Tex.Const., p. 271, observes:
“This provision is substantially an af-firmance of the rule of the common law. The requisite of indictment by a grand jury was designed to protect an individual against unjust prosecution without sufficient cause, said indictment informing the accused of the nature of the charges against him so that he may adequately prepare his defense.”
The statutory allowance to amend an indictment as to matters of form is limited by the constitutional requirement of a grand jury finding, expressed in the indictment, before felony prosecution. The connection between the constitutional protection of the grand jury and the statutory provision for amendment of matters of form was implicitly recognized early in the criminal jurisprudence of this State. In Calvin v. State, 25 Tex. 789, 794 (1860), the Court wrote:
“The indictment is the sworn declaration of the grand jury, and what they in substance ‘do say’, must stand as they have said it. The law prescribes the extent to which their findings may be amended. The amendments which are allowed relate to matters of form only, and to the name of the party who is accused. There can be no amendment as to any declaration of a fact by the grand jury.”
Next, in Sanders v. State, 26 Tex. 119, it was held:
“An indictment may be amended when it is defective on account of form; but where an indictment is defective in substance the defect cannot be cured by amendment; and the reason is, that the substance pf the indictment is the finding of the grand jury, and must be taken as it comes from them; whereas the formal part of the bill is supposed to be wholly , the work of the officer of the law, and may be amended by him under the direction of the court.”
The Court of Appeals spoke on this subject in Sharp v. State, 6 Tex.App. 650, 653 (1879):
“The work of the grand jury is substance, and cannot be amended, for the obvious reason that neither the pleader nor the court can perform the duties which devolve upon and are confided to the grand jury, and to it alone; whilst that portion of an indictment which devolves upon the pleader may, for reasons equally obvious, be amended, if permission be granted for that purpose at the proper time and in a proper manner.”1
“What is form and what is substance is defined by the Code; . . . ”
With this reference to the Code we set out the relevant provisions before continuing to other cases on the subject:
Art. 27.08, V.A.C.C.P.:
“There is no exception to the substance of an indictment or information except:
“1. That it does not appear therefrom that an offense against the law was committed by the defendant;
“2. That it appears from the face thereof that a prosecution for the offense is barred by a lapse of time, or that the offense was committed after the finding of the indictment;
“3. That it contains matter which is a legal defense or bar to the prosecution; and
*300“4. That it shows upon its face that the court trying the case has no jurisdiction thereof.”
Art. 27.09, V.A.C.C.P.:
“Exceptions to the form of an indictment or information may be taken for the following causes only:
“1. That it does not appear to have been presented in the proper court as required by law;
“2. The want of any requisite prescribed by Articles 21.02 and 21.21.
“3. That it was not returned by a lawfully chosen or empaneled grand jury.”
Art. 21.02, V.A.C.C.P.:
“An indictment shall be deemed sufficient if it has the following requisites:
“1. It shall commence, ‘In the name and by authority of The State of Texas.’
“2. It must appear that the same was presented in the district court of the county where the grand jury is in session.
“3. It must appear to be the act of a grand jury of the proper county.
“4. It must contain the name of the accused, or state that his name is unknown and give a reasonably accurate description of him.'
“5. It must show that the place where the offense was committed is within the jurisdiction of the court in which the indictment is presented.
“6. The time mentioned must be some date anterior to the presentment of the indictment, and not so remote that the prosecution of the offense is barred by limitation.
“7. The offense must be set forth in plain and intelligible words.
“8. The indictment must conclude, ‘Against the peace and dignity of the State.’
“9. It shall be signed officially by the foreman of the grand jury.”
Art. 28.09, V.A.C.C.P.:
“If the exception to an indictment or information is only on account of form, it shall be amended, if defective, and the cause proceed upon such amended charge.”
Art. 28.10, V.A.C.C.P.:
“Any matter of form in an indictment or information may be amended at any time before an announcement of ready for trial upon the merits by both parties, but not afterward. No matter of substance can be amended.”
A strict reading of these provisions would suggest that any defect under Art. 21.02, 'éupra, could be corrected by amendment pursuant to Arts. 28.09 and 28.10, supra. Such a reading, however, would allow amendment of the very facts found by the grand jury as to the commission of the alleged offense, in abrogation of the constitutional protection of the right to indictment by grand jury before prosecution for a felony, and in conflict with the principles of the above quoted cases. The jurisprudence on this subject reflects construction and applications of the provisions of what is now Art. 21.02, supra, that avoid such a constitutional conflict. That jurisprudence as of 1908 was outlined in Wade v. State, 52 Tex.Cr.R. 619, 108 S.W. 677:
“No indictment can be amended as to matter of substance after presentment by the grand jury. Said pleading could only be amended as to matter of form before announcement of ready for trial. Article 587 of the Code of Criminal Procedure of 1895 is as follows: ‘Any matter of form in an indictment or information may be amended at any time before an announcement of ready for trial upon the merits, by both parties, but not afterward. No matter of substance can be amended.’ It has been held formal matters in an indictment, subject to amendment, are those mentioned in the second and third subdivisions of article 439, Code Civ. [sic] Proc. 1895, and as to such amendments they must be made before announcement of ready for trial. The second and third subdivisions of said article 439 are as follows: (2) ‘It must appear therefrom that the same was presented in the district court of the county where the grand jury is in session.' (3) ‘It must appear to be the act of a grand jury of the proper *301county.’ It has been also held that the constitutional and statutory provisions with regard to commencement and conclusion of indictments are matters of substance as well as of form, and that an indictment or information cannot be amended so as to cure defects in the commencement or conclusion. See State v. Durst, 7 Tex. 74; State v. Sims, 43 Tex. 521; Holden v. State, 1 Tex.App. 225; Cox v. State, 8 Tex.App. 254, 34 Am.Rep. 746; and Saine v. State, 14 Tex. App. 144. It has been further held that the venue of an offense is a matter of substance and not amendable. See Collins v. State, 6 Tex.App. 647; Robins v. State, 9 Tex.App. 666; Orr v. State, 25 Tex.App. 453, 8 S.W. 644; Smith v. State, 25 Tex.App. 454, 8 S.W. 645; Lawson v. State, 13 Tex.App. 83. The time and commission of an offense is a matter of substance and cannot be amended. Sanders v. State, 26 Tex. 119; Drummond v. State, 4 Tex.App. [150]; Huff v. State, 23 Tex.App. 291, 4 S.W. 890; See, also, Calvin v. State, 25 Tex. 289. When the defect in an indictment is of substance, the indictment is not amendable, and the prosecution will be dismissed. Edwards v. State, 10 Tex.App. 25.
“It has also been held that descriptive averments, whether unnecessarily particular or minute, cannot be disregarded in proving up a case. For instance, it is not necessary to allege the color of an animal, or some particularity about the animal which peculiarly identifies it; yet, if the allegation is made, it must be proved, or the prosecution fails in its testimony. This question of requiring the state to prove the particular unnecessary description is so familiarly known to the profession and to the jurisprudence that we deem it unnecessary to cite authorities. It was unnecessary in this case to have set out the particular dates of the issue of the paper in which the publication of the order of the commissioners’ court was published; but, the grand jury having done so, it was beyond the power and province of the court to amend the indictment by eliminating it. It specified the particular election, the result of which was being published; and, the prosecution having thus elected to prosecute under that particular election it will be confined in its elements to such election. See Massie v. State (decided in the present term) 52 Tex.Cr.R. 548, 107 S.W. 846, and Weathered v. State, 60 S.W. 876, 1 Tex.Ct.Rep. 655. Had the indictment alleged generally that the publication had been had for four successive weeks, without specifying the dates of the publication and the year of the election, proof of either valid election, under the Massie Case, would have been sufficient. But in this case, the state having specified this particular election and the publication in the newspaper under it, the state would be confined to said election; and, having alleged it in the indictment, it became a matter of substance, descriptive in its nature, and could not be altered or changed by the court. Otherwise we would have what purports to be an indictment different entirely from that actually preferred by the grand jury, and which would constitute it no indictment at all. As the indictment comes from the grand jury, in matters of substance it must constitute the pleading required by the Constitution and laws of the state, and cannot be changed, altered, or amended.”
Subsequent cases have continued to draw the distinction between amendable form and non-amendable substance along the same line, by refusing to allow amendment of the allegations returned by the grand jury as to the commission of the offense,2 while allowing amendment of the formal parts of the bill prepared by the “officer of the law.” Sanders v. State, supra. Cases on the non-amendable/substance side of the distinction include: Rutherford v. State, 74 Tex.Cr.R. 617, 169 S.W. 1157 (changing “physical” to “physician”); Kirkendall v. *302State, 78 Tex.Cr.R. 168, 180 S.W. 676 (date of offense); Kelly v. State, 81 Tex.Cr.R. 408, 195 S.W. 853 (date of offense and name of complaining witness); Patterson v. State, 84 Tex.Cr.R. 157, 205 S.W. 986 (county of offense); Johnson v. State, 84 Tex.Cr.R. 243, 206 S.W. 527 (date of false statement in perjury case); Morman v. State, 127 Tex.Cr.R. 264, 75 S.W.2d 886 (court of prior conviction alleged for enhancement); Jeters v. State, 128 Tex.Cr.R. 379, 82 S.W.2d 150 (date of offense); McDonald v. State, 138 Tex.Cr.R. 610, 137 S.W.2d 1046 (striking “gross” from “gross negligence”); Balbuena v. State, 159 Tex.Cr.R. 227, 262 S.W.2d 727 (changing “whiskey” to “beer”); Clopton v. State, Tex.Cr.App., 408 S.W.2d 112 (date of prior conviction alleged for enhancement); Jackson v. State, Tex.Cr.App., 419 S.W.2d 370 (changing spelling of deceased’s name); Burrell v. State, Tex.Cr.App., 526 S.W.2d 799 (striking descriptive averments). Cases on the amendable/form side of the distinction include: Burk v. State, 57 Tex.Cr.R. 635, 124 S.W. 658 (date of filing); Hightower v. State, 73 Tex.Cr.R. 258, 165 S.W. 184 (adding term of court); Weaver v. State, 96 Tex.Cr.R. 363, 257 S.W. 246 (adding term of grand jury); Paulk v. State, 97 Tex.Cr.R. 415, 261 S.W. 779 (date of term of grand jury); Huff v. State, 123 Tex.Cr.R. 238, 58 S.W.2d 113 (adding to designation of court at presentation); Stansbury v. State, 128 Tex.Cr.R. 570, 82 S.W.2d 962 (county of grand jury).
The constitutional principle at issue has also been restated in recent years. In Bowie v. State, 401 S.W.2d 829, the Court approvingly quoted from Erisman’s Manual of Reversible Errors:
“Since the indictment is the result of grand jury action, the allegations of such indictment which charge the defendant with a crime, are matters of substance and cannot be amended . . . .”
The specific constitutional basis was explicitly referred to in Benoit v. State, Tex.Cr.App., 561 S.W.2d 810, and Moore v. State, Tex.Cr.App., 532 S.W.2d 333:
“It must be remembered that it is the intent of Article I, Sec. 10 of the Texas Constitution that an accused in a particular case must be furnished information upon which he may prepare his defense, and this information must come from the face of the indictment. .
“It is, of course, not sufficient to say that the accused knew with what offense he was charged, but the inquiry must be whether the charge in writing furnished that information in plain and intelligible language. . . .” (Emphasis added.)
The right to indictment by a grand jury before answering a felony charge and the right to notice ride in tandem. No one is answerable to a felony charge except on action by a grand jury making such an accusation3 — and it is from that accusation that notice must be had. The offense so charged may not be amended, neither by reducing the facts alleged, nor by changing them, nor by adding to them. To allow amendment by supplemental notice from the State violates the rule that notice must come from the facts found and alleged by the grand jury in the indictment. The proper relief upon motion to quash an indictment that gives insufficient notice is to dismiss the indictment, not to amend it. That was the disposition in Moore v. State, Tex.Cr.App., 473 S.W.2d 523, and the disposition of this case is changed to that extent.
The State’s motion for rehearing is overruled.
. The “proper time, proper manner” practice of the day is related earlier in the Sharp opinion.
. The unique exception to this seems to be the allowance of striking surplusage, which is construed as tantamount to abandonment of what need not be proven in any event. Garcia v. State, Tex.Cr.App., 537 S.W.2d 930; Davis v. State, Tex.Cr.App., 532 S.W.2d 626.
. This right may, however, be waived in non-capital cases by following the requirements of Art. 1.141, V.A.C.C.P.