Appellant was indicted, tried and convicted in the lower court for assault with intent to murder. “ An indictment for assault with intent to murder need not set forth the means used, nor the manner in which the means were used, to effectuate the murderous intention.” (Price v. The State, 22 Texas Ct. App., 110, and many authorities cited.) In this case, however, the pleader has set forth and alleged in the indictment that the assault was committed “with a gun, the same being a deadly weapon.” The testimony showed that the weapon used by the defendant was a pistol, and the court instructed the jury in substance, that if the assault as charged was committed with a gun or pistol they should convict. It is insisted that this instruction was erroneous, and that there is a fatal variance between the allegation and proof in this particular,
At common law, in an indictment for murder it was necessary to allege the means or weapon used (1 East’s Pleas of the Crown, *114341), and such allegation is requisite in an indictment for murder in this State. (Willson’s Criminal Forms, No. 388, p. 178, and authorities cited.). But when the indictment is required to contain such an allegation Mr. Bishop says: “ This is one of the cases in which proof of only the substance of the issue is required. Though at the trial the weapon appears not to have been the same as charged, yet to have produced the same sort of wound which it would have done, followed by the same sort of death, the averment is sustained.” (2 Bish. Crim. Pro., 3 ed., sec. 514.)
Opinion delivered October 10, 1888.Mr. Wharton says: “The common law rule in pleading the instrument of death is, that where the instrument laid and the instrument proved are of the same nature and character there is no variance; where they are of opposite nature and character, the contrary.” (1 Whart. Crim. Law, 8 ed., sec. 519.)
“ If the act of the prisoner and the means of death be proved in substance as alleged, the violence and death being of the same kind as alleged, a mere variance in the name or kind of instrument used will not be material (Bulst., 87) if the instrument was capable of producing the same kind of death. (9 Co., 67a; Gilb. Evid., 231; 1 Archbold’s Crim. Prac. and Plead., 8 ed. Pomeroy’s notes; note on p. 280.) Many other authorities might be cited but these are deemed sufficient, and they amply sustain the charge of the court and the sufficiency of the proof to sustain the allegation as to the means laid in the indictment by which the assault was committed. There is no substantial or material variance.
Other questions are presented by appellant, but they are not deemed of sufficient importance to require discussion. We have found no reversible error and the judgment is affirmed.
Affirmed.