Douglass v. State

• Decision Date: 10 October 1888
• Citation: 9 S.W. 489
• Parties: DOUGLASS <I>v.</I> STATE.
• Court: Texas Court of Appeals

9 S.W. 489

DOUGLASSv.

STATE.

Court of Appeals of Texas.

October 10, 1888.

Appeal from district court, Robertson county; J. N. HENDERSON, Judge.

Clifton Douglass was indicted for an assault with intent to murder. From a judgment of conviction defendant appeals.

Simmons & Crawford, for appellant. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

Appellant was indicted, tried, and convicted in the lower court for assault with intent to murder. "An indictment for assault with intent to murder need not set forth the means used, nor the manner in which the means were used, to effectuate the murderous intention." Price v. State, 22 Tex. App. 110, 2 S. W. Rep. 622, and authorities cited. In this case, however, the pleader has set forth and alleged in the indictment that the assault was committed "with a gun, the same being a deadly weapon." The testimony showed that the weapon used by defendant was a pistol, and the court instructed the jury, in substance, that if the assault, as charged, was committed with a gun or a pistol, they should convict. It is insisted that this instruction was erroneous, and that there is a fatal variance between the allegation and proof in this particular. At common law, in an indictment for murder, it was necessary to allege the means or weapons used, (1 East, P. C. 341,) and such allegation is requisite in an indictment for murder in this state, (Willson, Crim. Forms, No. 173, and authorities cited.) But when the indictment is required to contain such an allegation, Mr. Bishop says: "This is one of the cases in which proof of only the substance of the issue is required. Though at the trial the weapon appears not to have been the same as charged, yet to have produced the same sort of wound which it would have done, followed by the same sort of death, the averment is sustained." 2 Bish. Crim. Pr. (3d Ed.) § 514. Mr. Wharton says: "The common-law rule in pleading the instrument of death is that where the instrument laid and the instrument proved are of the same nature and character, there is no variance; where they are of opposite nature and character, the contrary." 1 Whart. Crim. Law, (8th Ed.) § 519. "If the act of the prisoner and the means of death be proved in substance as alleged, the violence and death being of the same kind as alleged, a mere variance in the name or kind of instrument will not be material, (Egerton v. Morgan, Bulst. 87,) if the instrument was capable of producing the same kind of death, (...