Hull v. State

Supreme Court of Alabama
Hull v. State, 79 Ala. 32 (Ala. 1885)
Clopton

Hull v. State

Opinion of the Court

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.

Reference

Cited By
13 cases
Status
Published