ON appellant’s motion for rehearing.
BEAUCHAMP, Judge.The original opinion ably discusses every question raised by the appeal and, we believe, reaches the correct conclusion. Ordinarily there would be no occasion for writing further but the very earnest and able motion for rehearing in this cause impels us to reconsider the question which it treats, and this we *409do in full appreciation for the careful efforts which appellant’s counsel have put forth in his behalf.
It is conceded that a distinguishment is to be made between the facts which must be proven, under the allegations of an indictment, and those which may be proven. The indictment alleges that defendant did assault Dick Baggett “with intent then and there to murder Dick Baggett.” Under such allegations an assault must be proven as well as an intent to murder. It must be proven that the assault was made on Dick Baggett. It is then contended that the State proved the assault was made on another party, with intent to kill him, and that it resulted in the wounding of Dick Baggett.
It is true that the proof shows that appellant thought he was shooting at another person but was in fact shooting at Dick Baggett. He intended to kill the man that he mistook for another fellow, but who was in fact Dick Baggett. Regardless of whom he was mad at and whom he thought he was shooting, his aim was directed at Dick Baggett and he intended to kill that very man as alleged in the indictment. The proof is consistent with the allegation that he did assault Dick Baggett with intent to kill Dick Baggett. It is immaterial that he thought Baggert was some one else when he did so.
Reliance is had on that line of authorities in drunken driving cases which hold that if the allegations state on what highway the driving took place, the proof must show that. Attention is called to the fact that where a general allegation is made that the driving took place on a public highway within a named county the proof may further show the number, and other description of such highway, but that is not necessary to do so.
Another line of decisions referred to hold that if the means used in making an assault are alleged the trial court can convict only when the alleged means have been proven. If other means than that alleged in the indictment are proven there is a variance between the indictment and the proof. If the indictment alleges an assault made with a knife, the proof would have to show that such instrument was used. However, this does not preclude further proof of the use of other and additional instruments, especially when proven for the purpose of showing intent. Admission is made in appellant’s motion that Jones v. State, supra, holds contrary to his contention. He thinks that the opinion in that case is inconsistent with other hold*410ings on similar questions, and that it should be overruled. Careful reconsideration of the Jones case, in the light of the one now before us, has been given and we are unable to agree that it should be overruled.
Believing that the correct conclusion has been reached, appellant’s motion for rehearing is overruled.