| Ala. | Dec 15, 1885
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. State v. Fox, 1 Dutcher, 566; State v. Smith, 32 Me. 369" date_filed="1851-01-21" court="Me." case_name="State v. Smith">32 Me. 369; Rogers v. State, 50 Ala. 102" date_filed="1874-01-15" court="Ala." case_name="Rodgers v. State">50 Ala. 102; 1 Bish. on Crim. Proc., § 514; 1 Arch. Cr. Pr. & Pl. 787.
The second charge requested by defendant, was properly refused. It predicates the right of defendant to an acquittal on the mere fact of a reasonable apprehension of an assault; and ignores a real or apparent danger to life or limb, and the doctrine of retreat.—Prior v. State, 77 Ala. 56" date_filed="1884-12-15" court="Ala." case_name="Prior v. State">77 Ala. 56; Henderson v. State, 77 Ala. 77" date_filed="1884-12-15" court="Ala." case_name="Henderson v. State">77 Ala. 77.
Affirmed.