Burney v. State

• Court: Georgia Court of Appeals
• Writing for the Court: BLOODWORTH, J.
• Citation: Burney v. State, 22 Ga.App. 622, 97 S.E. 85 (Ga. App. 1918)
• Decision Date: 08 October 1918
• Docket Number: 9818.
• Parties: BURNEY v. STATE.

97 S.E. 85

22 Ga.App. 622

BURNEY v. STATE.

No. 9818.

Court of Appeals of Georgia, Second Division

October 8, 1918

Syllabus by the Court.

The fourth and fifth grounds of the motion for new trial will be considered together. The fourth ground alleges error in allowing the prosecutor to testify that the accused shot at him "with a little 22 rifle," when the indictment charges that the weapon used was a "shotgun." The fifth ground complains that the trial judge expressed an opinion on the facts to the jury when the above referred to evidence was objected to, by saying, "Go ahead; a rifle is a shotgun." Had these propositions been submitted to the writer a few months ago, he would have ruled that both objections were good, basing his ruling upon the general proposition that the material allegations in the indictment must be proved as alleged. However, he yields to authority and must now hold differently, for the question seems settled by the decisions of this court and our Supreme Court. The case of Watson v. State, 21 Ga.App. 637, 94 S.E 857, was one in which the indictment charged that the alleged murder was committed by hitting and striking with a certain soda water bottle. There was proof from witnesses for the defendant that the homicide was committed with a brick. Judge Cobb charged the jury: "If it should appear to you that the killing was done, not with a soda water bottle, but with another instrument, of similar nature, a blunt instrument which would inflict a wound of the same character of wound that might have been inflicted with a soda water bottle, if you believe this beyond a reasonable doubt, then that averment in the indictment would be sufficiently proved." This court held that the charge given was not error. To this opinion the writer was reluctant to agree, but finally did so on account of the cases cited and quoted by Judge Harwell in his opinion, and especially on accourt of the decision in the case of Trowbridge v. State. 74 Ga. 431, in which our own Supreme Court said: "It is not indispensable to prove the precise weapon set forth in the indictment; it is sufficient if both were weapons likely to produce death, and were capable of inflicting the same character of injury." It now seems settled that the rule in Georgia is: "The proof of the means of commission of a homicide or assault need not conform strictly to the averment of such means in the indictment, provided the means of death or mode of applying the violence be the same in kind and agree in substance with those charged. As to the allegation of the instrument by which death is inflicted, or the assault committed, there is no variance where the proof shows that another instrument than that alleged was used where it was of a similar nature and caused the same character of wound or injury. The question in each case is whether the nature and character of the injury and the manner and means of inflicting it, as proved, is practically and substantially, though not identically, the same as that alleged. Thus evidence as to a dagger, sword, bayonet hatchet, or other cutting instrument, has been held to support the averment of a knife; striking with a stick, club metal bar, or pistol, an allegation of striking with a rock; striking with a piece of iron, an allegation of striking with a piece of plank; shooting with a pistol, shotgun, rifle, musket, or any kindred weapon, an allegation of killing or assaulting with a gun; shooting with a gun, an allegation of shooting with a pistol; and strangling with a scarf or cord, an averment of strangling or choking with the hands. Under an indictment charging the defendant with causing the death of the...