Gilbert v. State

ON REHEARING.

October 8, 1919.

LATTIMORE, Judge.

Appellant has presented his motion for rehearing, contending principally that there is a variance between the stick described in the indictment as the instrument with which the alleged homicide was committed, and the stick exhibited before the jury, and described by the witnesses, and also of misconduct of the jury.

The indictment describes said stick as “three feet and eight inches long, three inches wide, and one inch thick. ’ ’ In claiming a variance, appellant relies upon the well known rule of law, to the effect that there must be a…