concurring in the judgment.
I do dissent from the judgment rendered in this case. I only desire to say that in my opinion section 239 of the criminal practice act is narrowed in its construction by my associates beyond what is warranted. The statute provides that where there are other circumstances sufficient- to identify the offense charged, that an error as to the person injured shall not be material. As I do not propose to claim that there are sufficient other circumstances in this case to warrant us in saying that the offense described by the special verdict is the same charged in the indictment, it is not ma*206terial to go further than to say that I think the statute means that there may be cases so identified by other facts than those referring to the person injured, that notwithstanding it turns out to be another person, the defendant may be convicted. What those facts might be in advance it would be too difficult to define. But if defendant is charged with assaulting A and the act, the manner of it, the instrument, the place where, and the time when, are so described that where the proof shows that the act charged was in reality committed on B, and not on A, then, notwithstanding the variance, he may be convicted. In such case the statute will apply.
With this expression of my views I concur in the judgment.