Drummer v. State

Citations

• 45 Fla. 17

Syllabus

<p>1.Under the provisions of section 2403 Rev. Stats., it is mot necessary to the crime of assault with intent to murder that the assault shall have been made with a deadly weapon. The gist of the offense, under this statute, consists in the intent with which the assault is made; and, if this intent is properly alleged and proven, the instrument or appliance used is immaterial, except as it may serve as evidence to establish such intent. Gray v. State, 44 Fla. -, 33 South. Rep. 295, approved and followed.</p> <p>2. 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 subsantially 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.</p> <p>3. Under an indictment which charges an assault with intent to murder by shooting with a pistol, a conviction may be had on proof that the shooting was done with a gun, the two weapons being the samo in character and inflicting the same character of wound.</p> <p>4. The indictment and evidence examined, and-no material variance found between the crime charged and the proof.</p> <p>5. Evidence examined, and found sufficient to sustain the verdict.</p>