* Corpus Juris-Cyc. References: Assault and Battery, 5Cyc, p. 775, n. 4. There is no merit in any of the assignments of error, and the only one to which we deem it necessary to specially *Page 835 reply is that bringing under review the alleged variance between an allegation in the indictment and the proof.
The indictment alleges that the appellant committed the assault and battery "with a certain deadly weapon, to-wit, a wrench, by striking the said George Davis with said weapon." According to the evidence, the assault was made with a stick, which the jury were warranted in believing was a deadly weapon.
This variance between the indictment and the evidence is not such as affects the merits of the case, or of which the appellant can complain. The rule is that —
"Where the instrument laid 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." 13 R.C.L. 902.
Affirmed.