
    THE STATE v. MOORE, Appellant.
    Division Two,
    December 9, 1903.
    Assault: information and instruction: variance. Where an information charges a defendant with an assault upon A, an instruction is erroneous which authorizes the jury to find defendant guilty if he committed an assault upon A, B or 0, or any one of them; and the giving of such instruction, over defendant’s objection and exception, constitutes reversible error.
    Appeal from Christian Circuit Court.— Hon. Asbury Burkhead, Judge.
    Reversed and remanded.
    
      G. Purd Hayes for appellant.
    
      Edward C. Crow, Attorney-General, and C. D. Corum for the State.
    This case must be reversed and remanded. The information is in two counts. The first count charges an assault in and upon the body of one Nancy M. Lewis, with a deadly weapon, on purpose and of malice aforethought. The second count charges an assault in and upon the body of Nancy M. Lewis, with a deadly weapon, to-wit, a large stone, orf purpose and of malice aforethought. Instruction 1, given by the court, authorized the jury to find the defendant guilty if he unlawfully committed an assault upon Nancy M. Lewis, Troy Lewis or Roy Lewis, or any of them. The second instruction contained the same vice. The defendant was charged' with assaulting one person and under the instructions of the court he might have been convicted had he assaulted two other persons, or either one of the other persons. This necessitates a reversal and remanding.
   BURGESS, J.

On February 12, 1902, the prosecuting attorney of Christian county filed in the .office of the clerk of the circuit court of said county an information against defendant in two counts.

The first count charges defendant with a felonious assault upon one Nancy Lewis with a deadly weapon, to-wit, a certain gun and with a certain pistol.

The second count charges an assault in and upon the body of said Nancy Lewis, with a deadly weapon, to-wit, a large stone, on purpose and with malice afore- • thought.

The defendant was found guilty and his punishment fixed at two years’ imprisonment in the penitentiary. After unavailing motion for a new trial, defendant appeals.

Over the objection and exception of,defendant the court in instruction 1 authorized the jury to find the defendant guilty if he unlawfully committed an assault upon Nancy M. Lewis, Troy Lewis or Roy Lewis, or any of them, while the information charges him with committing an assault upon Nancy M. Lewis only.

The second instruction is open to the same objection.

These instructions are admitted to be erroneous by the Attorney-General.

The judgment is reversed and the cause remanded.

All concur.  