Threatt v. State, 6 Div. 292.

• Decision Date: 11 June 1946
• Docket Number: 6 Div. 292.
• Citation: 32 Ala.App. 416,26 So.2d 530
• Parties: THREATT v. STATE.
• Court: Alabama Court of Appeals

26 So.2d 530

32 Ala.App. 416

THREATT v. STATE.

6 Div. 292.

Alabama Court of Appeals

June 11, 1946

Jas. H. Bradford and G. J. Prosch, both of Birmingham, for appellant.

Wm N. McQueen, Atty. Gen., and MacDonald Gallion, Asst. Atty Gen., for the State.

BRICKEN Presiding Judge.

Upon an indictment which charged the offense of murder in the first degree, the defendant was tried and convicted of the offense of murder in the second degree, and the jury fixed his punishment at imprisonment for a period of fifteen years. Judgment of conviction was duly pronounced and entered and the court sentenced him to imprisonment in the penitentiary for fifteen years. From said judgment this appeal was taken.

Pending the trial in the court below no exceptions of any import were reserved to the court's rulings upon the admission of evidence. On this appeal it is insisted the court erred in refusing to defendant several written charges, and also in overruling and denying the motion for a new trial.

Upon the trial there was no dispute or conflict as to the fact this appellant killed Clement Bates by nearly severing his head from his body by cutting him with a razor. The indictment charged that he unlawfully and with malice aforethought killed Clement Bates by cutting him with a knife. As we see it, the principal insistence of error to effect a reversal of the judgment of conviction is based upon the question of a variance in that the indictment charged the killing was by cutting the deceased with a knife, and the evidence disclosed, as stated, the defendant killed Bates by cutting him with a razor. Appellant's earnest and able counsel lay principal stress upon this proposition in their briefs but cite no authorities in support thereof. That there is no merit in this contention has been definitely decided in the following decisions. In Hull v. State, 79 Ala. 32, our Supreme Court said:

'The indictment charges, that the assault was made with a razor. There was evidence tending to show that the wound was inflicted with a pocket-knife. The court, in the general charge, instructed the jury, in substance, that it was immaterial whether the assault was made with a razor or a pocket-knife; and refused to charge, at the request of defendant, that if the jury had a reasonable doubt as to the assault being made with a razor, they must acquit the defendant. It is sufficient, if the substance of the charge be proved, without regard to the precise instrument used. Though the indictment charges a particular weapon, the averment is substantially proved, if it be shown that some other instrument was employed, which occasions a wound of the same kind as the instrument charged, and the same consequences naturally follow.' See Also Rodgers v. State, 50 Ala. 102.

In Turner v. State, 97 Ala. 57, 12 So. 54, 55, the court said:

'The indictment alleges the deceased came to his death by defendant's shooting him with a gun. The proof showed he was shot with a pistol, and defendant objected to the evidence of his having been shot with a pistol;...