Johnson v. State

PELHAM, J.

The indictment upon which the defendant was tried charged him with having committed an assault and battery on his wife with a weapon; the description of the weapon being averred as unknown to the grand jury. On the trial Mandy Hamilton, a witness for the state, testified that she was an eyewitness to the assault, and went before the grand jury that -returned the indictment against the defendant, and that *64 she informed the grand jury in the course of her examination as a witness that the weapon used by the defendant in beating his wife was a hammer; that she told the grand jury she saw defendant beat his wife with a hammer, and that the defendant’s wife had stated that it was a hammer that was used by the defendant in beating her. W. P. Woodruff testified as a witness for the state to the effect that when the defendant’s wife came out of the house crying, just after the assault had been made on her, she “said something about a piece of iron,” but that witness did not see the assault, and did not know what defendant struck his wife with; that he was before the grand jury that presented the indictment, and made the same statement to them.

It is evident that the description of the weapon used by the defendant in assaulting his wife was known to the grand jury, and there was no warrant in law for the grand jury to aver the fact as unknown. Under thé rule laid down by the Supreme Court, there was a variance between the proof made before the grand jury and the allegations made in the' indictment, and the court was in error in refusing the general charge requested by the defendant. —Duvall v. State, 63 Ala. 12 ; Jones v. State, 63 Ala. 27 ; Childress v. State, 86 Ala. 84 , 5 South. 775 ; Wells v. State, 88 Ala. 240 , 7 South. 272 ; Reese v. State, 90 Ala. 628 , 8 South. 818 ; Winter v. State, 90 Ala. 638 , 8 South. 556 ; James v. State, 115 Ala. 86 , 22 South. 565 ; Terry v. State, 118 Ala. 87 , 23 South. 776 ; Terry v. State, 120 Ala. 286 , 25 South. 176 .

The defendant’s objections to certain portions of the testimony of the state’s witness Frances are shown .to have been, not to the questions, but to the evidence after the witness had testified to matters deemed to be objectionable by the defendant. No motion was made *65 to exclude, aud the only objection assigned to the testimony was that it was illegal. The court was not in error in overruling the objection. —Ellis v. State, 105 Ala. 72 , 17 South. 119 ; Washington v. State, 106 Ala. 58 , 17 South. 546 ; Downey v. State, 115 Ala. 108 , 22 South. 479 .

For the error pointed but, the case will be reversed.

Reversed and remanded.