Dissenting. — I am forced to dissent, because it seems to me to be clearly settled in this State that an indictment must state with some degree of particularity, and will due regard to truth, upon what part of the human frame the mortal wound was inflicted.
One of the grounds for reversal in the case of Keech v. State, 15 Fla. 591, was because the indictment in describing the wound of the deceased, charged that the defendant, “with a certain pistol, loaded, etc., shot off and discharged, etc., did strike, penetrate and wound the said Ellen Wells.” In passing on that allegation Mr.- Chief Justice Eandall said:- “We believe'it is uniformly'held *252in the English books that the part of the body in which the deceased was wounded should be particularly -stated. (2 Hawk. P. C., Ch. 23, 80.) The English common law in relation to crimes and misdemeanors, except as to the mode and degree of punishment, prevails here by express statute. ’ ’
Many courts hold that where the indictment charges the wound to have been inflicted upon the “body,” or upon the “head” of the deceased, that it is not necessary to allege the particular part of the body or head where the wound is inflicted, and-that if the indictment alleges that the wound was inflicted upon a certain part of the head, or body, and the testimony shows that the location of the wound on the head or body was not accurately described in the indictment, that it is not a fatal variance.
But in describing where the wounds are inflicted the pleader must have some regard for the meaning of words as decided by the courts, and this court has A^ery clearly, emphatically and specifically defined what is meant in law by the word body, when describing in an indictment where a wound is inflicted.
In the case of Walker v. State, 34 Fla. 167, 16 South, Rep. 80, the indictment was attacked because it alleged that the wound was made “upon the body of him, the said Wiley Bentley,” without stating upon what part of the body the wound Avas inflicted. The court held that this description was sufficient because the “body” is a well known part of the human frame as distinguished from other parts. After saying that it was not necessary to allege upon Avhat particular part of the “body” the mortal wound was inflicted, the court proceeded to define what is meant in láw by the word “body,” and said: “The word ‘body’ as applied to the human frame, in ordinary *253language, has a well-defined and well-understood signification. It means the trunk, as distinguished from the head and limbs, that part of a human being between the upper part of his thighs or hips and his neck, excluding his arms. The case of Sanchez v. People, 22 N. Y. 147, is a case very-similar to the one at bar. In that case the court said: ‘The indictment charges the commission of the murder in the following words: ‘And that the said Felix Sanchez, with a certain sword which he, the skid Felix Sanchez, in his right hand then and there had and held, the said Harmon Curnon, in and upon the body of him the said Harmon Curnon, then and there wilfully and feloniously, and of his malice aforethought, did stab, cut and wound, giving unto the said Harmon Curnon then and there with the sword aforesaid, in and upon the body of him the said Harmon Curnon, one mortal wound, of the breadth of one inch, and of the depth of three inches, óf which said mortal wound he the said Harmoñ Curnon, at the ward, city' and county aforesaid, then and there instantly died.’ The indictment does not otherwise show upon what part of the body of Curnon the mortal wound was given; and the counsel for the plaintiff in error now contends that the omission is fatal. The indictment, in my opinion, is sufficiently certain in this respect. By the word body, in this connection, is to be understood the trunk of the man, in distinction from his head and limbs. This is the doctrine of the books on the subject. Long’s Case, Coke’s R. Pt. 5, 120.”
With this judicial pronouncement separating the various parts of the human frame into arms, legs, body and head, I cannot avoid the conclusion that the testimony, establishing as it does that the mortal wound was inflicted on the head, is a fatal variance from the allegations of the indictment that charges the wound to have been on the *254“body” or trunk, and that a wound on the head is not, arid cannot be, a wound on the body.
In the rapid strides being made by the courts away from old and long settled common law principles, it may be that it would have been sufficient to have alleged that the wound was inflicted upon the “person” or “frame” of the deceased, but where the pleader sees fit to describe the wound with more particularity, the proof must conform in some slight degree to the allegations in the indictment; thus, an indictment charging a person with larceny of an animal of the bovine genus, would be sufficient if the testimony showed that the animal was either a cow or a steer, but where the indictment charges a person with stealing a cow and the proof showed that the animal stolen was a steer, it wras held by this court to be a fatal variance. Mobley v. State, 57 Fla. 22, 49 South. Rep. 941.
The consequences of a fatal variance between the allegata and probata cannot be avoided by holding that the specific description may be regarded as “surplusage.” This court has recently passed on that very point, in the ease of Smith v. State, 74 Fla. 75, 76 South. Rep. 774. In that case the indictment described a cow that was the subject of larceny, as having been branded “T, ” and the evidence showed that the brand found upon the hide of the animal stolen, was “Diamond T.” This court quoted approvingly from Allen v. State, 8 Tex. App. 360: “Indictment for theft of a branded animal need not allege or describe its brand; but, when alleged as descriptive of the animal, the proof must correspond with the allegation, and a variance between the allegation and the proof is material and vitiates a conviction.” . . . •