
    CHISOM v. STATE.
    (No. 3618.)
    (Court of Criminal Appeals of Texas.
    June 16, 1915.
    Rehearing Denied Oct. 13, 1915.)
    1. Indictment and Information <&wkey;122—Ac-cusation—'Vaeiance—Substantial Ag-keement—Common Name.
    A complaint charged that an assault was committed with “knucks, commonly known as brass knucks,” while the information based on the complaint described the weapon merely as “knucks.” Held, that the omission of the phrase “commonly known as brass knucks” was not a fatal variance.
    [Ed. Note.—For other cases, see Indictment and Information, Cenr. Dig. §§ 321-325; Dec. Dig. <&wkey;>122.]
    2. Criminal Law <&wkey;176 — Evidence — Expert Witnesses—Opinion.
    Where a doctor has qualified as an expert, it is not error to admit his opinion as to causes of the injuries complained of, especially where his opinion is supported by his statement of the nature of the wounds.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1062; Dec. Dig. <©=3476.]
    3. Assault and Battery &wkey;>91—Proof—Va-riance— Substantial Proof.
    An information charging an assault with “knucks” will be supported by substantial proof of the means used.
    [Ed. Note.—For other cases, see Assault and Battery, Cent. Dig. § 136; Dec. Dig. &wkey;>91.3
    4. Criminal Law <&wkey;200-rEviDBNOE — Relevancy—Other Offenses.
    On a charge of assault with “knucks,” it is immaterial that the defendant has already been acquitted on the charge of unlawfully carrying knucks on the occasion of the assault; the question of unlawful carrying not being in issue.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 347, 386-409; Dee. Dig. &wkey;200.)
    Appeal from Harris County Court, at Law; O. O. Wren, Judge.
    Wash Chisom was convicted of aggravated assault, and he appeals.
    Affirmed.
    Meek & Kahn, of Houston, for appellant. John H. Crooker, Or. Dist. Atty., and E. T. Branch, both of Houston, and O. O. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was charged by information with “unlawfully making an aggravated assault and battery upon the person of Oscar P. Steckel, with a weapon then and there calculated to inflict serious bodily injury, to wit, knucks, and by the use of said •weapon did then and there inflict serious bodily injury to the said Osear P. Steckel,” etc. The Assistant Attorney General and Mr. B. T. Branch have filed a brief, which in our opinion correctly disposes of each question presented, and we therefore adopt the brief as the opinion of the court:

“1. The complaint on which the information is based recites that the assault was committed with a weapon, ‘to wit, knucks, commonly known as brass knucks,’ while the information describes the weapon as ‘knucks.’ Appellant contends that there is a fatal variance between the information and the complaint as to the description of the weapon with which the assault is alleged to have been committed, on account of the fact that the words ‘commonly known as brass knucks,’ which appear in the complaint, are not contained in the information. The terms ‘knuckle,’ ‘knuckles,’ ‘knucks,’ ‘brass knuckles,’ and ‘brass knucks’ have the same meaning. Mills v. State, 36 Tex. Cr. R. 71, 35 S. W. 370; Morrison v. State, 38 Tex. Cr. R. 392, 43 S. W. 113. Where there is substantial agreement between the information and the complaint, on which it is based, a variance is immaterial. Meier v. State, 10 Tex. App. 39; Cole v. State, 11 Tex. App. 67; Steinberger v. State, 35 Tex. Cr. R. 492, 34 S. W. 617; Baker v. State, 35 S. W. 666; Huizar v. State, 63 S. W. 329; Moreno v. State, 64 Tex. Cr. R. 660, 143 S. W. 157, Ann. Cas. 19140, 863; Brown v. State, 170 S. W. 714. This is an information for an assault, and it is not sought to charge the unlawful carrying of a prohibited weapon on the person. The name by which a thing is commonly called is in law its name, though in fact it may bear a different name. Roman v. State, 64 Tex. Cr. R. 515, 142 S. W. 912; Schenk v. State, 174 S. W. 357. We think the variance is immaterial and could in no way have affected the rights of the appellant. The ground of aggravation relied on was that serious bodily injury was inflicted.
“2. There was no error in permitting the doctor, who had qualified as an expert, to give his opinion as to the probable cause and nature of the injuries inflicted on the alleged injured party. Waite v. State, 13 Tex. App. 180; Banks v. State, 13 Tex. App. 182; Streight v. State, 62 Tex. Cr. R. 453, 138 S. W. 742; Spates v. State, 62 Tex. Cr. R. 532, 138 S. W. 395; Lacoume v. State, 143 S. W. 626; Williams v. State, 144 S. W. 626; Harris v. State, 148 S. W. 1076; Singleton v. State, 167 S. W. 46; Brown v. State, 174 S. W. 362. The opinion of the doctor that the injured party was struck with metal knucks, or with some instrument capable of inflicting a similar injury, is borne out by his descrintion of the wounds inflicted, the number of fractures, and the direct connection between the fractures and the surface of the skin.
“3. The proof is sufficient to sustain thé finding of the trial judge, as shown by his qualification to bill of exceptions No. 4, accepted and filed by appellant, to the effect that the testi-monv was amply sufficient to show circumstantially that the prosecuting witness was struck with knucks, as found by the jury, whom the judge had charged to acquit unless they found he was struck with knucks. The qualification to this bill shows, also, that the trial judge was clearly convinced that the prosecutor was either struck with knucks made of metal or some hard substance, or with some instrument capable of and which did produce the same injury as if he had been struck with knucks. In proving the means used in committing a murder, or any grade of assault, only the substance of the issue need be proven. Douglass v. State, 26 Tex. App. 109, 9 S. W. 489, 8 Am. St. Rep. 459; Monk v. State, 27 Tex. App. 450, 11 S. W. 460; Johnson v. State, 29 Tex. App. 150, 15 S. W. 647; Morris v. State, 35 Tex. Cr. R. 317, 33 S. W. 539; Brown v. State, 43 Tex. Cr. R. 293, 65 S. W. 529; Taylor v. State, 44 Tex. Cr. R. 550, 72 S. W. 396; Lopez v. State, 73 Tex. Cr. R. 624, 166 S. W. 155.”

The fact that appellant had been tried and acquitted of unlawfully carrying brass knucks on this occasion would not bar a prosecution for an assault with knuckles. They are two separate and distinct offenses, and even though the proof on the trial for carrying the knucks might have been insufficient to sustain a verdict that he had knucks, or that he unlawfully carried them, yet on this trial it was wholly unnecessary to prove that he unlawfully carried the knucks; that would not be an issue in this case. Or if the state in that case failed to prove he had on or about his person knucks, this would not prevent the state on this trial adducing additional testimony and showing that he did in fact strike Steckel with knucks. We do not know what the testimony was on the trial of the case when he was charged with carrying the knucks; we only have the testimony adduced on this trial, and the facts and circumstances offered in evidence by the state will support the finding of the -trial court and jury that Steckel was struck with knucks.

The judgment is affirmed. 
      (©=3For other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes
     