Threats of Prosecution to Extort Money — Allegation and Proof — Variance. On a trial for threats to extort money, where the information alleged threats to prosecute before the Justice Court of Precinct No. 1 of B. County, Held, that this allegation was essential to the identity of and constituted part of the offense, and that not being proved as alleged, the variance was fatal to the conviction.
DAVIDSON, JUDGE
Omitting the formal parts, the information charges, that "One A.F. Harper, together with J.W. Strange, Bird Phillips, and S.J. Bruton, * * * did then and there unlawfully and willfully, and with the intent to extort money and pecuniary advantage of R.L. Phillips, Sr., did unlawfully threaten to accuse the said R.L. Phillips, Sr., before a court, to wit, the Justice Court of Precinct No. 1 of Brown County, Texas, of a felony, to wit, of the offense of having, in Brown County, Texas, on or about the 24th day of April, 1891, committed with a beast, to wit, a mare — a female of the horse species — the abominable and detestable crime against nature, of sodomy, by then and there having carnal intercourse with said mare, a beast, as aforesaid. * * *" The evidence fails utterly to show that any threat was made by defendant or his codefendants to prosecute Phillips in the Justice Court of Precinct No. 1 of Brown County, Texas. Variance is urged in this regard, and we think the point well taken. This allegation constituted part of the offense, was pleaded as part of the threat, identified the threat charged to have been made, and put the parties upon notice that such state of facts would be proved against them. Penal Code, art. 649.
The judgment is reversed and cause remanded.
Reversed and remanded.
Judges all present and concurring.