Hull v. State , 79 Ala. 32 ( 1885 )

CLOPTON, J.

The indictment charges, that the assault was made with a razor. There was evidence tending to show that the wound was inflicted with a pocket-knife. The court, in the general charge, instructed the jury, in substance, that it was immaterial whether the assault was made with a razor or a pocket-knife; and refused to charge, at the request of defendant, that if the jury had a reasonable doubt as to the assault being made with a razor, they must acquit the defendant. It is sufficient, if the substance of the charge be proved, without regard to the precise instrument used. Though the indictment charges a particular weapon, the averment is substantially proved, if it be shown that some other instrument was employed, which occasions a wound of the same kind as the instrument charged, and the same consequences naturally follow. State v. Fox, 1 Dutcher, 566; State v. Smith, 32 Me. 369; Rogers v. State, 50 Ala. 102; 1 Bish. on Crim. Proc., § 514; 1 Arch. Cr. Pr. & Pl. 787.

The second charge requested by defendant, was properly refused. It predicates the right of defendant to an acquittal on the mere fact of a reasonable apprehension of an assault; and ignores a real or apparent danger to life or limb, and the doctrine of retreat.—Prior v. State, 77 Ala. 56; Henderson v. State, 77 Ala. 77.

Affirmed.