State v. Muskelly

Defendants contend that their motions for judgment as of nonsuit as to Case Numbers 12-428 and 12-432, the alleged assault upon Pless, should have been granted. The pertinent parts of these indictments read:. . [D]id, unlawfully, wilfully and feloniously assault one Arthur Nell Pless with a certain deadly weapon, to wit: a pistol with . . . upon said Arthur Nell Pless to wit: by shooting him with said pistol. . . .”

The defendants’ contention is based upon an alleged fatal variance between the allegations of the indictment and proof offered at the trial. The evidence at the trial revealed that…