Ryan v. State

52 Ind. 167

Opinion

Pettit, J.

— Indictment for assault and battery. The ■charging part of the indictment is this:

“ Did then and there, at the county of Martin, in the State of Indiana, in a rude, insolent and angry manner, unlawfully touch, beat, bruise and strike one William N. Wag-goner; and did, then and there * * * * unlawfully .shoot, strike and wound him, the said William N. Waggoner, with a gun loaded with powder and leaden shots, which,” etc.

The evidence shows that the battery was committed with a stone, and not with a gun, as alleged in the indictment; and the only question in the case is, does the evidence warrant a conviction on the indictment?

There is no necessity, in an indictment for an assault and battery, to describe the instrument with which the battery was committed; but if this is done, it is sufficient to prove that it was done with a different instrument, and this will not be a variance. 2 Bishop Crim. Proced., sec. 514; 1 Greenl. Ev., sec. 65.

The judgment is affirmed, at the costs of the appellant.