Taylor v. The State

Taylor v. The State. Murder. (Decided Jan. 17th, 1907. 42 So. Rep. 997.) Homicide; Indictment; Allegation and Proof. — An indictment charging that the defendant committed a homicide by shooting the deceased with a pistol is supported by evidence that he shot deceased with a shot gun. Appeal from Tuscaloosa County Court. Heard before Hon. H. B. Foster. Bud Taylor was convicted of manslaughter in the first degree and sentenced to three years in the penitentiary. From this conviction he appeals. The facts upon which the opinion is rested sufficiently appear therein. No counsel marked for appellant. Massey Wilson, Attorney General, for State. — The question presented by the record has been decided against appellant’s contention. — Turner v. State, 97 Ala. 57; J ones v. State, 137 Ala. 12. [MAJORITY — DOWDELL, J.] DOWDELL, J. There is but one question presented for our consideration. The indictment charges that the defendant committed the homicide by shooting the deceased with a pistol, and the evidence shows that the shooting was done with a shotgun-. The defendant objected to this evidence on the ground of a variance, and also requested a charge to the jury for his acquittal on the same ground. This question has been deicded adversely to the appellant in the case of Turner v. State, 97 Ala. 57, 12 South. 54. See, also, Jones v. State, 137 Ala. 12, 34 South. 681. There is no error in the record., and the judgment is affirmed. Affirmed. Tyson, C. J., and Andebson and McClellan, JJ., concur.