Florence v. State

273 S.W.2d 631 (1954)

Billie Rodger FLORENCE, Appellant, v. The STATE of Texas, Appellee.

No. 27139.

Court of Criminal Appeals of Texas.

November 3, 1954.

Rehearing Denied December 15, 1954.

*632 No attorney on appeal for appellant.

Howard M. Fender, Crim. Dist. Atty., Eugene D. Biddle, Hugh F. King, Conard Florence, Asst. Dist. Attys., Fort Worth, Wesley Dice, State's Atty., Austin, for the State.

WOODLEY, Judge.

The conviction is for aggravated assault with a motor vehicle; the punishment, one year in jail.

Appellant complains of the overruling of his motion to quash the information. The information alleged that appellant "did drive and operate a motor vehicle, to-wit: an aut_obile", while the complaint alleged that he drove and operated "a motor vehicle, to-wit: an aut_mobile".

Bad spelling will not vitiate the complaint or information if the sense is not affected and the meaning cannot be mistaken. Graham v. State, 119 Tex.Cr.R. 14, 46 S.W.2d 709; Murphey v. State, 109 Tex.Cr.R. 524, 5 S.W.2d 988.

The complaint and information each show the misspelling of the word automobile, but it clearly appears that it was meant in each instance to allege that the motor vehicle was an automobile. No variance is therefore shown.

There is no statement of facts, in the absence of which the remaining bill cannot be appraised.

The judgment is affirmed.

MORRISON, Judge.

Appellant urges that the judgment is vague and indefinite as to the punishment.

The judgment is now reformed so as to recite that appellant shall be confined in the county jail for a term of one year and until the costs of prosecution are paid so as to conform to the information, the charge of the court and the verdict of the jury.

Appellant's motion for rehearing is overruled and, as reformed, the judgment is affirmed.