21 Ga. App. 637 | Ga. Ct. App. | 1918
(After stating the foregoing facts.) The evidence for the State disclosed that the homicide' was committed with á soda-water bottle, and the evidence for the accused tended to the theory that there was a second altercation, and that the fatal blow was made with a brick. The special ground of the motion for a new trial, which complains of certain excerpts from the court’s charge and of the Tefusal to charge as requested, make practically one question, and that is, did the learned trial judge err in charging that “if it should appear that the killing was done, not with a soda-water bottle, but with another instrument, of similar nature, — a blunt instrument, which would produce a wound of the same character that might have been inflicted with a soda-water bottle,” a conviction could be sustained, under the allegations of this indictment; or, in other words, there would be no fatal variance between the allegations and the proof? The able counsel for the defendant earnestly insists that there would be a fatal variance, that the State, having alleged that the instrument was a soda-water bottle, would be held to proof of that, but he cites no Georgia case directly sustaining that contention.
The case nearest in point in this State, and in fact the only .one so far as we have been able to find, is that of Trowbridge v. State, 74 Ga. 431. That was an indictment charging assault with intent to murder by using “an axe, a weapon likely to produce death.” The prosecutor testified that he was struck with an axe.
“Where the instrument of death alleged and that proved are substantially of the same character, capable of inflicting practically the same nature of injury in substantially the same manner, there is no variance. The question in each case is whether the nature and character of the injury and the manner and means of inflicting it as proved are practically and substantially, though not identically, the same as that alleged.” 11 Standard Ene. Proc. 594, 595, citing cases sustaining the text, from Alabama, Illinois, Indian Territory, Kentucky, Maine, Massachusetts, Mississippi, Nebraska, New Hampshire, New Jersey, North Carolina, Oklahoma, Tennessee, Texas, and Washington. Knife and razor similar. May v. State, 110 Ark. 432 (162 S. W. 43). See also Elliott v. State, 4 Okla. Cr. 224 (111 Pac. 820, 140 Am. St. R. 683); Hernandez v. State, 32 Tex. Cr. 271 (22 S. W. 972). “It is the received 'doctrine that in homicide cases, where the indictment alleges the killing was done with a gun, proof can be made under
In the case of State v. Gould, 90 N. C. 666, in which it was contended that there was a variance between the instrument with which the mortal wound was inflicted and the- one charged in the bill of indictment, the court said: “The bill charges that the wound was given with a rock, and the proof rather tended to show that it was inflicted with a stick. It can make no difference rvhether the deceased was struck with a rock or a stick. Eor it is held that where the instrument of death laid in the indictment and that proved are of the same nature and character, and the method of the operation is the same, though the instrument is different, there is no variance.”
In Jones v. State, 137 Ala. 12 (34 So. 681), it was held: “Under an indictment which charges that the defendant killed the deceased by cutting him with a knife or by stabbing him with a knife, a conviction may be had if it be proved that some other instrument was employed which occasioned a wound of the same kind as the instrument charged; and a charge which so instructs the jury asserts a correct proposition of law and is free from error.” “On a trial under an indictment for murder, which charges that the deceased was killed by being stabbed with a knife, a charge is erroneous and properly refused which instructs the jury that 'Unless the evidence shows to the minds of the jury beyond all reasonable doubt that the deceased came to his death by being stabbed with a knife, or cut with a knife, then you can not find the defendant guilty/ ”
In Hull v. State, 79 Ala. 33, the 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,
The writer has not overlooked the case of Fulford v. State, 50 Ga. 591, cited and relied on by the able counsel for the plaintiff in
In our opinion the trial judge did not err for any of the reasons complained of in the motion for a new trial. The verdict was authorized by the evidence, and the judgment overruling the mo-
tion is Affirmed.