Walker v. State

73 Ala. 17

Opinion

SOMERVILLE, J.

— The indictment charges the defendant with- having assaulted and beat the prosecutrix “ with a weapon, to-wit, a gun.”

The rule is, that the 'mode of committing an offense must generally be proved as laid in the indictment, as least in substance. — Boscoe’s Cr. Ev. * 89-90. This principle embraces the instrument through the agency of which the crime is perpetrated. The evidence must show it to be of the same substantial nature with the description given. Precise conformity in every particular is never demanded, but it must be shown to correspond in general character and operation with the averments' of the indictment. Such matters of description, even though alleged with unnecessary particularity, often become essential to the fact of identity. — Whart.-on Or. Ev. (8th Ed.) 91-92; 1 Greenl. on Ev. § 65.

It is clear that if an indictment charges an assault and battery with a 'weapon, as is the case here, and the evidence shows that the offense was committed without a weapon, as with the hand or fist-, there is a fatal variance. The charge of the court was erroneous in refusing to recognize this principle.- — Johnson v. The State, 35 Ala. 363; 1 Bish. on Or. Proc. §§ 485-486; Rodgers' case; 50 Ala. 102 ; 1 East. P. C. 341; Filkins v. People, 69 N. Y. 101, (S. C. 25 Amer. Rep. 143); Whart on Cr. Ev. §§ 91-92; 1 Greenl. on Ev. § 65.

Reversed and remanded.