1. Assault with Intent to Murder — Indictment — Variance. — Where the indictment charged an assault with intent to murder with a bowie knife, and the State was permitted, over objection, to prove that the instrument used was a butcher knife, held, under provisions of article 501, Penal Code, there was no variance between the allegation and the proof.
2. Same — Charge — Drunkenness. — On a trial for assault with intent to murder, it is not error to refuse a charge on drunkenness when the evidence does not justify such charge; nor where, if it did, temporary insanity produced by the recent use of intoxicating liquor could not have reduced the offense below murder in the second degree had death resulted from such assault. Following Evers' case, 31 Texas Criminal Reports, 318.
SIMKINS, JUDGE.
Appellant was convicted of an assault with intent to murder, and his punishment assessed at two years confinement in the penitentiary, from which he appeals. There are but two questions to be considered.
1. The indictment charged an assault with intent to murder with a bowie knife. The State, over the objection of the defendant, proved that the assault and stabbing was committed with a butcher knife, and this is alleged as error. We do not think there was any variance or error. Penal Code, art. 501.
2. The court did not err in refusing the charge on drunkenness; first, because the evidence did not justify such a charge; and secondly, admitted that it did, still if appellant would have been guilty of murder had he been sober and had death resulted, the fact that he was temporarily insane from the recent use of intoxicating liquor, or so drunk as to be incapable of forming an intent, would not have reduced the offense lower than murder in the second degree. Evers' case, 31 Tex. Crim. 318. And the fact that the lowest punishment was in fact given supercedes any failure of the court to charge that they should look to such drunkenness in mitigation of the penalty. The judgment is affirmed.
Affirmed.
Judges all present and concurring.