#### Johnson *v.*The State.

*Assault and Battery.*

(Decided April 4, 1912.

58 South. 754.)

.1. *Indictment and Infftrmation; Variance.*— Where the proof showed 'that'the-undisputed' evidence before the grand jury was that.the defendant, had committed an. assault and battery with a hammer, an indictment charging him with an assault and. battery with a weapon- the; description of which-was unknown to the grand jury, was at variance with the proof, and entitled the defendant to the general affirmative charge.

*632. *Trial; Reception of Evidence; Objection; Time.*— Where no objection was interposed to the testimony until after it had been given, and the only objection urged was that it was illegal, and no motion was made to exclude it, the objection was properly overruled.

Appeal from Morgan Law and Equity Court.

Heard before Hon. Thomas W. Wert.

William Johnson was convicted of an assault and battery and he appeals.

Affirmed.

C. L. Price, for appellant.

The defendant was entitled to the affirmative .charge because of a variance between the allegations of the indictment and the proof before the grand *jury.*— Duval *v. The State,*63 Ala 12; *Jones v. The State,*63 Ala. 29; *Childress v. The State,*86 Ala. 84; *Wells v. The State,*88 Ala. 240; *Reese v. The State,*90 Ala. 628; *Winter v. The State,*90 Ala. 638; *James v. The State,*115 Ala. 86; *Terry, v. The State,*118 Ala. 87; s. c. 120 Ala. 298.

R. C.' Brickell, Attornel General, and W. L. Martin, Assistant Attorney General, for the State.

The objection to the testimony came too *late.*— Ellis *v. The State,*105 Ala. 72; *Downey v. The State,*115 Ala. 108. The objection was not sufficient, and there was no motion to exclude. — Authorities supra. The defendant was not entitled to the affirmative charge as the evidence was *conflicting.*— Turner *v. The State,*97 Ala. 57.

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 *64she 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 *65to 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.